METHODS  OF 

Constitutional    Construction 

THE  SYNTHETIC  METHOD  ILLUSTRATED 

ON  THE  FREE  SPEECH  CLAUSE 

OF  THE  FEDERAL  CONSTITUTION 


THEODORE  SCHROEDER 

Author  of  Free  Speech  for  Radicals,  "  Obscene  "  Literature  and  Consti- 
tutional Law,  Compiler  Free  Press  Anthology,  Etc.,  Etc.,  Etc. 


WITH  THRBB  SUPPLEMENTS    BEARING  ON  THB 

RIGHTS  OF  REVOLUTIONISTS  BY 
JAMES  MILL,  J.  L.  DuLOLMB  AND  JOHN  CARTWRIOHT 


FREE  SPEECH  LEAGUE 

50  EAST  59th  STREET 

NEW  YORK  CITY 


1C 


CONTENTS 

Page 

Foreword,  by  T.  S.  5 

Methods  of  Constitutional  Construction,  by  T.  S.      7 
Foreword  to  Appendixes,  by  T.  S.  41 

James  Mill.     (Biog.  note  by  T.  S.)  45 

On  Liberty  of  the  Press,  by  James  Mill  47 

J.  L.  De  Lolme.     (Biog.  note  by  T.  S.)  77 

Right  of  Resistance,  by  J.  L.  De  Lolme  78 

John  Cartwright.     (Biog.  note  by  T.  S.)     -       -      85 
Resistance  and  Armsbearing,  by  John  Cartwright   87 


284671 


FOREWORD 

"DEAR  SIR: 

"We  are  returning  to  you  under  separate  cover  the 
interesting  article  we  had  the  pleasure  of  receiving 
from  you,  with  regret  that  we  cannot  use  it. 

"In  passing  perhaps  it  would  not  be  out  of  the 
way  to  suggest  that  it  gives  the  impression  that  its 
author,  like  the  judges  it  is  aimed  at,  has  allowed 
himself  to  be  carried  away  by  prenatal-predisposi- 
tions." 

Thus  wrote  the  "Editor  in  chief"  of  a  prominent 
law  review  in  returning  the  manuscript  which  is  here- 
inafter published.  Among  those  who  are  displeased 
or  disappointed  with  the  conclusion  of  the  following 
essay  there  will  be  those  inclined  to  echo  the  sentiment 
of  this  editor  and  obtuse  enough  to  complacently  con- 
sider this  an  adequate  disposition  of  the  whole  dis- 
cussion. I  frankly  accept  the  implied  criticism  of  my 
ability  to  make  any  essential  phase  of  my  meaning 
clear  to  any  such  minds. 

I  do  not  claim  exemption  from  predispositions. 
With  all  of  us  reasoning  is  admittedly  but  an  effort 
to  justify  our  predispositions.  But  I  do  make  con- 
scious effort  (here  perhaps  I  may  justly  claim  to 
differ  from  some  lawyers)  toward  habitually  found- 
ing my  predispositions  upon  a  confidence  in  the 
scientific  method  and  its  impersonal  results  rather 
than  upon  attachment  to  concrete  doctrines  of  ad- 
vantage to  self,  to  friends,  or  class.  Of  course  it 
may  be  that  in  this  effort  I  have  failed  utterly.  Even 
so,  it  is  hoped  that  I  can  make  it  clear  to  some  readers 
that  I  am  not  merely  pitting  my  predispositions 
against  those  of  others  or  my  personal  desires  as 
such,  against  the  personal  desires  of  others. 

The  challenge  of  the  following  essay  is  that  every 
predisposition  be  submitted  to  the  check  and  justi- 


FOREWORD 

fication  of  the  scientific  method,  and  here  I  have 
merely  tried  to  point  out  the  requirements  of  that 
method  as  applied  to  some  legal  problems.  How- 
ever much  the  readers  will  dislike  the  conclusions  ar- 
rived at,  I  hope  that  those  of  mature  intellect  will 
devote  themselves  to  discrediting  the  scientific 
method  in  general,  or  to  discrediting  my  conception 
of  it.  Everything  else  is  irrelevent. 

Those  who  feel  themselves  in  possession  of  a  law- 
less power  and  who  are  therefore  beyond  the  need 
for  justifying  their  conduct,  and  those  who  are  too 
indolent  or  too  dull  to  do  so  will  of  course  be  con- 
tent to  ignore  the  issue  I  am  most  anxious  to  pre- 
sent, namely:  the  value  of  synthetic  method  of  con- 
stitutional construction. 

THEODORE  SCHROEDER. 


METHODS 

OF  CONSTITUTIONAL 
CONSTRUCTION 

The  mental  operations  by  which  our  constitutional 
liberties  receive  "construction"  are  naturally  classi- 
fied into  three  distinct  categories,  viz :  the  analytic, 
the  historic  and  the  synthetic  processes.  As  applied 
to  constitutional  law,  these  three  categories  embody 
the  essentials  of  the  scientific  method  and  it  is  of  the 
highest  importance  to  the  progress  of  juridical  sci- 
ence that  lawyers  and  judges  acquire  a  clearer  idea 
of  its  requirements. 

From  a  time  long  antecedent  to  that  in  which 
Englishmen  executed  forty  judges  for  their  unright- 
eous judgments,  lawyers  and  courts  have  been  ob- 
jects of  suspicion  and  contempt  in  minds  uninflu- 
enced by  the  sophistry  of  our  legalolatrists.  My 
conviction  is  firm  that  our  laws  and  courts  will  con- 
tinue to  receive  such  disrespect  until  there  is  a  better 
understanding  of  both  the  cause  and  the  cure  of  the 
malady.  The  purpose  of  this  paper  is  to  point  these 
out. 

Psychologists  inform  us  that  all  reasoning  is  but 
an  attempt  to  justify  our  predispositions.  Space 
limits  here  preclude  a  psychogenetic  study  of  predis- 
positions.  It  is  enough  to  say  that  judges  are  not 
free  from  them  nor  is  society  exempt  from  their  evil 
influence.  I  think  I  may  safely  add  that  the  predom- 
inating judicial  predisposition  is  never  a  singleness 
of  devotion  to  clearly-conceived  requirements  of  the 
scientific  method.  As  sympathy  or  interest  inclines 
them  toward  the  aspirations  of  the  masses  or  the  pre- 
tensions of  the  mighty,  judges  are  necessarily  pre- 

7 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

disposed  in  favor  of  either  a  government  from  out  of 
the  people  or  a  government  from  over  the  people. 
Thus  lawyers  and  judges  become  definitely  arrayed 
in  two  groups  of  conflicting  predispositions — the  lib- 
eral and  the  strict  constructionists.  The  more  intel- 
ligent will  be  conscious  of  their  status  and  more  or 
less  consistent  in  their  adherence  to  the  standards  of 
their  group  and  will  be  most  plausible  in  defending 
their  predispositions.  They  will,  indeed,  do  almost 
anything  except  make  a  thorough  introspection  as  to 
the  source  or  nature  of  these  predisposing  influences 
or  definitely  adopt  the  scientific  method  for  checking 
them. 

Despite  an  ostentatious  display  of  the  "judicial 
temperament"  the  legal  scientist  sees  plainly  the  na- 
ture of  the  predisposition  in  the  conspicuous  absence 
of  the  factors  by  which  well  disciplined  minds  con- 
sciously impose  upon  themselves  the  check  of  the  sci- 
entific method.  In  the  hope  of  increasing  both  the 
inclination  and  the  capacity  for  using  the  scientific 
method  I  will  proceed  to  elucidate  it  and  illustrate  its 
use.  Perhaps  I  should  remind  the  reader  that  the 
first  requisite  to  the  scientific  method  is  confidence  in 
its  results,  no  matter  how  these  may  conflict  with  our 
desires  or  interests. 

THE  ANALYTIC  METHOD  OUTLINED 

The  analytic  method  is  based  upon  the  assumption 
that  the  constitution  declares  general  principles  or 
that  in  its  guarantees  of  liberty  it  implies  general 
criteria  of  liberty  which  are  to  operate  as  a  control- 
ling restraint  upon  the  conduct  of  all  public  func- 
tionaries. Hence  the  object  of  the  analytic  method 
is  to  ascertain  from  the  actual  wording  of  the  consti- 
tution and  by  a  strictly  deductive  process,  the  exact 
meaning  and  application  of  its  implicit  or  explicit 
general  principles  upon  any  particular  piece  of  legis- 
lation or  specific  official  act.  If  we  are  not  to  encour- 
age judicial  lawlessness,  this  means  that  the  criteria 
of  constitutionality  must  be  both  general  and  certain 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

and,  for  the  purpose  of  the  analytic  method,  must  be 
derived  exclusively  from  the  very  words  of  the  con- 
stitution and  not  dogmatically  forced  into  it.  This 
is  a  distinction  which  some  courts  have  declared  to 
exist,1  but  heretofore  the  proper  implication  of  the 
distinction  between  reading  from  and  reading  into 
the  constitution  has  usually  been  ignored  in  the  ju- 
dicial cerebrations.  Furthermore,  failing  to  under- 
stand and  apply  the  scientific  method,  our  judges 
also  fail  to  check  their  unreasoned  emotional  predis- 
positions and  so  have  practically  reduced  our  consti- 
tutional liberty  to  a  matter  of  mere  uncontrolled  ju- 
dicial whim.  The  intelligent  observer  sees  in  their 
dogmatic  reference  to  the  constitution  nothing  more 
than  a  transparent  pretext  to  justify  the  judicial 
prejudice.  Elsewhere  I  think  I  have  demonstrated 
this  to  be  a  fact  with  reference  to  our  constitutional 
guarantee  of  unabridged  "freedom  of  speech  and 
press."2  This  situation  is  equally  apparent  upon 
other  subjects  and  is  shown  by  the  judicial  opinions 
which  devote  themselves  to  a  discussion  of  what  the 
judge  thinks  the  constitution  ought  to  be  rather  than 
what  its  f  ramers  meant  to  make  it. 

These  defects  in  intellectual  process  are  equally 
apparent  and  quite  as  uniformly  present  whether  the 
immediate  effect  is  to  uphold  or  to  deny  a  particular 
right  claimed.  It  is  an  intellectual  shortcoming  not 
called  into  existence  by  the  necessities  of  either  the 
liberal  or  the  strict  constructionist,  as  such,  but  aris- 
ing from  the  inadequate  intellectual  development  of 
our  judges.  Under  such  circumstances,  even  when 
a  claim  of  liberty  is  sustained  by  judicial  dogmatism 
nothing  whatever  has  been  gained  for  general  liberty. 

So  far  as  constitutional  law  is  concerned,  dog- 
matic liberty  is  liberty  by  permission,  a  mere  phase 
of  slavery,  because  the  next  judicial  dogmatist, 

i  State  vs.  Payne,  29  Pac.  Rep.  787;  McCluskey  vs.  Cromwell,  11 
NvY,  (1  Kern.)  593-602. 

2  "Obscene"  Literature  and  Constitutional  Law,  Chap.  10,  entitled 
"Judicial  Dogmatism  on  Freedom  of  the  Press." 

9 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

through  a  like  exercise  of  arbitrary  power,  has  equal 
authority  for  the  contrary  conclusion.  The  casual 
suspense  of  despotism  is  not  a  destruction  of  despotic 
principles  or  power.  The  former  depends  on  the  vir- 
tue or  caprice  of  tyrants,  political,  economic,  judicial. 
The  latter  depends  upon  the  intelligence  and  force  at 
the  command  of  the  governed.  Judicial  "discretion" 
is  not  inherently  different  from  judicial  caprice. 
Government  by  a  judiciary  unrestrained  by  clear  and 
unequivocal  general  principles,  is  in  fact  a  lawless 
government;  its  activities  embody  every  evil  element 
of  despotism  acting  against  law.^Ail  liberty  by  per- 
mission is  despotism  no  matter  how  well  the  formali- 
ties of  law  and  democracy  seem  to  be  observed,  nor 
how  well  we  are  trained  to  humble  prostration  of  in- 
tellect before  the  idol-precedents  established  by  our 
legalolatrists. 

THE  HISTORICAL  METHOD  OUTLINED 

When  it  seems  to  justify  some  predisposition,  our 
courts  say  that  the  "constitution  should  be  read  in  the 
light  of  its  history  and  of  the  understanding  of  the 
whole  American  people  when  the  grant  was  made."3 
This  shows  that  the  judges  realize  some  connection 
between  historical  events  and  constitutional  construc- 
tion, but  the  use  they  make  of  this  knowledge  only 
betrays  the  crudity  of  their  notions  as  to  the  nature 
of  that  relation.  In  the  first  place,  it  is  absurd  to 
talk  of  a  consensus  of  opinion  among  the  "whole 
American  people."  The  American  people  as  a  whole 
had  but  few  and  crude  ideas  about  problems  of  lib- 
erty and  the  leaders  were  frankly  divided  in  their 
opinion  upon  the  province  of  government  as  well  as 
upon  the  guarantees  for  protecting  liberty  which 
should  be  incorporated  into  the  constitution.  Of 
course,  in  the  language  used  each  contestant  hoped 
that  future  generations  would  see  his  own  predisposi- 

a  Gibbons  vs.  Ogden,  9  Wheat  1 ;  6  Law  Ed.  1 ;  see  also  Scott  vs. 
Sanford,  19  Howard,  393.  15  Law  Ed.  691.  Reynolds  vs.  U.S.,  98 
U.S.,  162;  Boyd  vs.  U.S.,  116  U.S.,  616-622-625;  Carolina  vs.  U.S.,  199 
U.S.,  437. 

10 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

tions,  although  sometimes  necessity  for  compromise 
may  have  made  the  language  designedly  vague.  At 
all  events,  it  is  manifestly  ridiculous  to  talk  about 
"the  whole  American  people"  at  that  time  as  having 
the  same  opinion  about  constitutional  liberty.  A 
clearer  conception  of  the  historical  method  as  applied 
to  constitutional  construction  would  have  compelled 
the  courts  to  see  that  some  of  its  provisions  represent 
a  compromise  between  conflicting  theories  of  gov- 
ernment and  liberty,  though  usually  they  represent 
a  decisive  victory  of  one  of  the  contesting  factions. 

Rightly  to  understand  the  historical  method 
means  to  enquire  into  those  issues  of  principle  which 
were  the  essence  of  the  antecedent  agitation,  which 
conflicts  our  constitutions  were  designed  to  decide. 
The  fact  that  this  method  of  contrasting  pre-revolu- 
tionary  contentions  as  a  means  of  constitutional  in- 
terpretation has  never  been  judicially  used,  shows 
the  want  of  understanding  by  which  our  courts  are 
habitually  hampered. 

Such  defective  conception  as  to  method  makes  it 
easy  for  our  courts  to  refer  to  history  and  quote 
some  historic  opinion  as  a  precedent  to  justify  what- 
ever predisposition  is  controlling  the  momentary 
whim  of  the  judicial  mind.  When  a  court  wishes  to 
justify  a  cherished  preconception  in  one  case,  it  may 
quote  approvingly  Jefferson's  resolution  on  tolera- 
tion passed  by  the  Virginia  Legislature.4  In  anoth- 
er case,  when  the  same  court  wishes  to  abridge  free- 
dom of  utterance,  it  will  unhesitatingly  repudiate  the 
above  by  approving  Blackstone's  contrary  concep- 
tion of  toleration.5  Now  they  overlook  the  fact  that 
there  was  great  need  to  "uncannonize  Blackstone" 
as  Jefferson  wrote.6  To  those  who  know  no  more 

*  Reynolds  vs.  U.S.,  98  U.S.,  163. 

5  Patterson  vs.  Colorado,  205  U.S.,  454;  4  BL  Com.  151.  "Liberty  of 
the  press  consists  of  printing  without  any  previous  license,  subject 
to  the  consequences  of  the  law."  King  vs.  Withers,  3  Terra  Reports 
430.  This  was  the  conception  of  liberty  of  the  press  which  always 
obtained  among  tyrants  after  1694,  when  the  licensing  act  was  re- 
pealed. It  is  this  conception  which  our  supreme  court  endorses. 

e  Letter  104  to  Judge  Taylor,  June  17,  1817,  edition  of  1829. 

11 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

about  the  scientific  method  than  do  such  judges,  and 
to  those  who  have  predispositions  similar  to  those 
held  by  them,  these  two  irreconcilable  definitions  of 
intellectual  freedom  will  seem  equally  plausible  and 
conclusive  and  the  mind  will  remain  utterly  uncon- 
scious of  the  existence  of  any  conflict. 

THE  SYNTHETIC  METHOD  OUTLINED 

By  the  synthetic  method  of  constitutional  con- 
struction is  meant  the  co-relation  of  all  constitutional 
provisions  which  define  and  restrict  governmental 
authority.  The  synthetic  method  is  based  upon  the 
assumption  that  each  of  these  limitations  and  guar- 
antees is  a  part  of  a  general  idea  of  liberty  and  that 
only  by  understanding  each  part  in  its  relation  to  all 
other  parts  may  we  arrive  at  an  all-inclusive  general- 
ization thereafter  to  be  applied  deductively  and  de- 
cisively to  each  concrete  problem  of  freedom  and  to 
each  separate  constitutional  guarantee  of  a  partial  or 
particular  liberty. 

I  believe  that  our  courts  without  exception  have 
utterly  failed  to  show  the  least  acquaintance  with 
synthetization  as  a  method  of  constitutional  construc- 
tion. Our  judges  are  far  removed  from  even  a 
speaking  acquaintance  with  the  scientific  method  for 
developing  a  general  concept  of  liberty.  Conse- 
quently they  lack  the  means  of  acquiring  a  practical 
working  criterion  for  determining  the  constitutional 
limits  between  liberty  and  the  police  power  with  the 
result  that  they  do  much  worse  than  merely  dogma- 
tize or  to  attempt  some  crude  empiric  inductions  about 
it.  The  courts  tell  us  that  the  limits  of  liberty  and 
the  police  power  have  not  been  defined  and  are  in 
their  nature  indefinable.7  Thus  our  courts  undertake 
authoritatively  to  make  their  own  intellectual  bank- 
ruptcy the  limit  of  the  intellectual  evolution  of  the 
race.  It  is  pathetic  but  apparently  inevitable  that 

Tin  re  License  Cases,  46  U.S.,  504-583-592;  12  Law  Ed.  256.  Comm. 
vs.  Alger,  7  Cush,  53-85.  Leavenworth  vs.  Miller,  7  Kas.  R.  501; 
Reeves  vs.  Corning,  51  Fed.  Rep.  774-785. 

12 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

such  men  should  so  largely  determine  the  destiny  of 
human  society  in  thus  stifling  the  development  of  a 
rational  conception  of  liberty.  In  concluding  this  es- 
say I  will  indicate  tentatively  the  criteria  of  the  lim- 
its of  liberty  and  the  police  power. 

THE  SCIENTIFIC   METHOD   PRACTICALLY   ILLUSTRATED 

Having  now  outlined  the  requirements  of  the  sci- 
entific method,  I  shall  illustrate  somewhat  briefly 
how  this  method  may  be  applied  in  the  interpretation 
of  the  free  speech  clause  of  the  Federal  Constitu- 
tion.8 I  select  this  because  it  seems  to  me  the  more 
fundamental  of  our  liberties  and  for  the  further  rea- 
son that  I  can  make  this  illustration  more  brief  than 
I  could  any  other  by  occasionally  pointing  to  some 
published  essay  of  mine  for  greater  elaboration.  I 
have  tried  to  analyze  the  words  of  the  first  amend- 
ment9 to  show  that  freedom  of  utterance  is  abridged 
whenever  a  man  is  punished  for  the  mere  psychologic 
offence  of  expressing  his  thoughts,  that  is,  whenever 
he  is  suppressed  or  punished  except  on  the  basis  of 
an  ascertained,  actual  and  material  injury  or  the  im- 
minent danger  thereof  according  to  the  known  laws 
of  the  physical  universe.  This  standard  would  per- 
mit the  fruitless  advocacy  of  every  disapproved 
doctrine  even  including  treason.  Especially  because 
of  the  clearness  of  the  constitutional  language  in 
this  clause  it  has  seemed  to  me  that  the  results  of  the 
analytic  process  are  conclusive,  and  yet  they  do  not 
satisfy  all  the  requirements  of  the  scientific  method. 

While  persisting  in  doubts  founded  upon  con- 
servative predispositions,  the  result  thus  attained 
may  be  checked  by  the  historic  method,  as  I  have  in- 

8  For  an  abstract  statement  of  the  scientific  method  see:  American 
Law  Review,  June,  1908,  reprinted  in  Chap.  18  of  "Obscene"  Litera- 
ture and  Constitutional  Law.  See  also:  Interstate  Commerce,  Em- 
ployers' Liability  and  the  Supreme  Court,  in  Government,  June,  1908. 

»Vol.  68,  Central  Law  Journal,  pp.  227,  234,,  Mch.  26,  1909;  re- 
vised in  Free  Speech  for  Radicals,  Chap.  4.  Again  in  "Obscene"  Lit- 
erature and  Constitutional  Law,  Chap.  8. 

13 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

dicated.  This  I  have  also  done  elsewhere  and  I  be- 
lieve I  have  justified  the  conclusion  already  stated.10 
Perhaps  there  the  issues  were  not  as  exhaustively 
treated  as  they  might  have  been,  yet  the  process  is 
clearly  enough  illustrated.  Especially  important  in 
this  connection  is  the  declaration  of  the  Continental 
Congress  (which  I  had  not  then  seen)  in  which  it  is 
said  that  freedom  of  the  press  must  be  maintained 
as  a  means  "whereby  oppressive  officials  are  shamed 
and  intimidated  into  more  honorable  and  just  modes 
of  conducting  affairs."11  Likewise,  I  then  over- 
looked the  fact  that  the  United  States  Supreme 
Court  had  once  endorsed  as  authoritative  that  fine 
statement  of  Jefferson's  as  embodied  in  Virginia's 
Act  of  Toleration,  in  which  it  is  said  that  "it  is  time 
enough  for  the  rightful  purpose  of  government  for 
its  officers  to  interfere  when  principles  break  out  into 
overt  acts  against  peace  and  good  order.12  This 
criterion  of  the  limits  of  toleration  is  applicable  to 
every  possible  case  of  freedom  of  speech  and  press 
but  it  is  hardly  to  be  expected  that  the  Supreme 
Court  will  adhere  to  it  when  in  some  future  case  it 
shall  come  into  conflict  with  its  preconceptions. 
Our  courts  are  not  yet  controlled  by  principle,  or  only 
when  in  their  narrower  vision  the  expedience  of  par- 
ticular results  caribe  justified  by  principles. 

There  is  another  check,  perhaps  only  a  subdivision 
of  the  historic  method,  which  can  also  be  applied. 
The  academic  defences  of  intellectual  freedom  can 
be  separated  into  two  classes — those  which  only  advo- 
cate more  freedom  than  was  contemporaneously  con- 
ceded and  those  defences  which  are  for  an  una- 
bridged freedom  of  utterance.  But  even  the  former 
will  confirm  our  result  if  we  do  not  confuse  the  de- 
mand for  larger  liberty  with  that  for  unabridged 
freedom.  If  we  ignore  the  dogmatic  exceptions 

10  Central  Law  Journal,  Mch.  to  June,  1910;  "Obscene"  Literature 
and  Constitutional  Law,  Chap.  11. 

"Address  to  the  inhabitants  of  Quebec,  Oct.  28,  1774;  Journal  of 
Continental  Congre*9,  Vol.  1,  p.  108,  edition  of  1904. 

»  Reynolds  vs.  U.S.,  98  U.S.,  163. 

14 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

which  the  various  authors  make,  and  generalize  the 
reasons  or  the  particular  criteria  of  freedom  offered 
in  support  of  a  partial  or  larger  liberty,  we  will  find 
even  here  the  budding  conceptions  through  which 
the  idea  of  unabridged  freedom  of  utterance  must 
develop.  The  reasons  urged  and  the  criteria  offered 
for  unabridged  intellectual  liberty  upon  one  subject 
are  not  fundamentally  different  from  those  which 
must  be  applied  to  secure  toleration  for  every  opin- 
ion on  every  subject.  An  author  may  regret  or  even 
repudiate  the  consequences,  but  it  is  nevertheless  true 
that  the  arguments  and  criteria  furnished  to  secure 
freedom  of  religious  discussion  are  usually  just  as 
applicable  to  political  or  sex  discussion  and  to  the 
criticism  of  our  courts  and  government.  Thus  all 
the  arguments  presented  for  a  growing  intellectual 
liberty13  by  exhibiting  the  living  thoughts  which  de- 
termined the  intention  and  action  of  the  men  who 
framed  our  constitution,  lend  us  assistance  towards 
finding  general  criteria  for  unabridged  intellectual 
opportunity.  This  in  turn  becomes  a  factor  in  the 
criteria  of  general  liberty.  It  is  in  this  way  that  we 
can  test  our  working  hypothesis  first  derived  by  the 
use  of  the  analytic  method.  It  is  only  by  this  method 
that  our  judges  will  be  able  to  check  their  own  pre- 
dispositions and  lust  for  power. 

It  seems  to  me  that  even  this  brief  outline  of  the 
historical  method  which  is  but  a  part  of  the  required 
checks  for  a  thorough  method  of  constitutional  con- 
struction is  enough  to  show  us  how  far  short  our 
courts  have  fallen  even  when  they  had  some  glimmer 
of  the  true  process. 

CONCERNING  THE  SYNTHETIC  PROCESS 

In  illustrating  what  I  mean  by  the  synthetic  meth- 
od I  believe  I  can  show  that  our  judges  have  not  even 
dimly  conceived  either  the  possibilities  or  the  process 

is  These  are  moderately  well  re-stated  in  Chap.  5  of  "Obscene"  Lit- 
erature and  Constitutional  Law.  For  more  elaborate  original  state- 
ments see  Free  Press  Anthology. 

16 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

by  which  alone  the  best  intellectual  results  can  be  ob- 
tained. Thus  far  it  has  been  briefly  indicated  how, 
by  improving  on  the  old  methods,  the  conclusion 
may  be  justified  that  unabridged  freedom  of  speech 
and  press  means  that  no  one  shall  be  hindered  in 
or  punished  for  expressing  his  sentiments  about  any 
subject  so  long  as  no  actual  or  material  injury  has 
resulted,  and  even  then  no  punishment  shall  follow 
from  the  sentiments  as  such,  but  shall  be  inflicted 
solely  on  the  basis  of  proven  actual  and  material  in- 
jury. Because  of  the  nature  of  the  method  herein- 
before used,  the  criteria  of  intellectual  freedom  were 
necessarily  stated  in  general  terms  and  without  ap- 
plication to  concrete  problems  or  a  consideration  of 
the  related  guarantees  of  liberty.  This  will  now  be 
done.  Although  this  synthetizing  process  is  the 
least  known  to  the  legal  profession,  yet  it  is  the  most 
important  check  which  can  be  applied  for  the  con- 
firmation or  destruction  of  the  criteria  of  freedom 
heretofore  indicated. 

THE  FOURTEENTH  AMENDMENT  AND  CERTAINTY 

First,  then,  let  us  see  what  bearing  the  "due  pro- 
cess of  law"  clause  has  upon  the  construction  of  the 
free  speech  clause.  So  far,  apparently  our  courts 
have  not  even  dreamed  of  any  connection.  In  prac- 
tically all  prosecutions  for  circulating  prohibited 
ideas,  the  test  of  criminality  has  been  and  is  the  prob- 
lematic, speculative  and  prospective  psychologic  ten- 
dency of  an  accused  idea  upon  some  mere  hypotheti- 
cal reader  of  the  future.  Because  of  the  uncertainty 
of  this  criterion  of  guilt,  endless  opportunity  for  op- 
pression was  offered  to  the  evil-disposed  members 
of  spy-societies  and  of  the  judiciary.  Every  one 
familiar  with  this  chapter  of  the  struggle  for  free- 
dom against  the  varying  methods  for  constructing 
treasons,  knows  how  frequent  were  the  complaints 
against  uncertainty  in  the  criteria  of  guilt.  In  the 
stormy  days  of  George  III  declamatory  patriots 

16 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

used  to  describe  this  judge-made  law  of  treason 
somewhat  in  the  way  that  Johnson  defines  network, 
as  "a  thing  reticulated  or  decussated,  with  interstices 
between  the  intersections." 

But  uncertainty  in  the  criteria  of  guilt  was  also 
the  cause  for  complaint  as  to  other  than  intellectual 
crimes,  and  from  the  necessity  for  a  remedy  against 
all  the  evils  of  uncertainty,  arose  the  maxim,  ubi  jus 
incertum  ibi  jus  nullum.  About  a  century  ago, 
Mence,  in  his  valuable  book  on  "Libel,"  while  writing 
about  the  words  "per  legem  terrae"  said:  " What- 
ever else  it  may  or  may  not  mean,  in  this  place  there 
can  be  no  doubt  but  that  it  must  mean  the  then 
known,  accustomed  and  established  law  of  the  land, 
so  opposed  to  any  uncertain  and  unknown  rule."14 
Such  contentions  would  usually  be  connected  with 
Coke's  statement  that  all  judgments  against  Magna 
Chart  a  are  void.15 

Elsewhere  I  have  quite  exhaustively  discussed  un- 
certainty in  criteria  of  guilt  as  violative  of  the  guar- 
antees of  "due  process  of  law"16  and  yet  I  cannot  re- 
frain from  giving  some  additional  references  to 
books  where  some  phase  of  the  subject  is  mentioned. 17 
/  There  cannot  be  "due  process  of  law"  unless  there  is 
"law."]  In  any  case  where  all  the  facts  are  known 
there  can  be  no  "law"  unless  the  criteria  of  guilt  are 
so  certain  that  men  of  ordinary  intelligence  cannot 
err  nor  reach  conflicting  conclusions  as  to  their  crim- 
inality. If  this  conception  of  law  and  due  process  of 
law  is  now  co-ordinated  with  our  guarantee  of  una- 

i*  Mence  on  Libel,  p.  312. 

152  Coke's  Institutes,  527,  77,  87. 

is  "Obscene"   Literature   and   Constitutional  Law,  Chaps.    18  to  21. 

IT  Lord  Camden,  quoted  in  Words  and  Phrases,  vol.  3,  p.  2069;  Lord 
Andover  in  a  speech  in  1640,  quoted  in  the  Freedom  of  Speech  and 
Writing,  p.  94;  Fortesque's  Preface  to  his  Report,  pp.  3-4;  John 
Locke,  quoted  in  Observations  on  the  Nature  of  Civil  Liberty,  pp. 
37-8;  John  Cartwright,  in  the  English  Constitution  Produced,  etc., 
pp.  136-7,  143,  276;  Rev.  C.  C.  Colton,  in  "Lacon,"  p.  83.  Ed.  of  1832; 
"The  First  American  Democrat;"  Blackstone's  Com.,  Book  III,  Chap. 
8;  Sir  Thomas  Burdette  to  his  constituents  (1810)  p.  15;  4  Parlia- 
mentary History,  115,  117,  118;  U.S.  vs.  Lamkin,  73  Fed.  Rep.  463; 
Justice  Brown  of  U.S.  Supreme  Court,  34  Am.  Law  Review,  322. 

17 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

bridged  liberty  of  utterance,  then  we  must  conclude 
that  no  form  of  speech  (including  printing)  can  be 
penalized  merely  on  the  basis  of  a  jury  speculation 
about  the  prospective  psychological  tendency  of  the 
idea  upon  a  hypothetical  future  reader.  In  other 
words,  if  we  construe  freedom  of  speech  as  a  sub- 
division of  that  general  liberty  which,  in  order  to  pre- 
clude all  arbitrary  power,  in  all  cases  requires  abso- 
lute certainty  in  the  criteria  of  guilt,  then  we  again 
conclude  that  such  freedom  of  speech  and  press  is 
abridged  if  any  mere  psychological  offence  is  pun- 
ished. As  was  said  before,  the  criteria  of  guilt  must 
include  actual  and  material  injury  resulting  from 
the  dissemination  of  an  idea.  Guilt  can  never  be 
constitutionally  predicated  upon  an  uncertain  specu- 
lation about  the  uncertain  and  problematic  tendency 
of  an  idea  upon  a  future  hypothetical  reader  and 
actor. 

DUE  PROCESS  OF  LAW  AND  EQUALITY 

The  one  essence  of  "law"  and  "due  process  of  law" 
which  has  most  often  received  judicial  sanction  is  the 
proposition  that  there  can  be  no  "law"  without  equal- 
ity as  to  all  persons  who  are  similarly  situated  with 
reference  to  the  state  or  society.  Thus  Jeremy 
Bentham  made  equality  one  of  the  tests  for  deter- 
mining the  existence  of  freedom  of  utterance  in  rela- 
tion to  government.  According  to  him,  liberty  exists 
if  "at  the  hands  of  persons  exercising  the  powers  of 
government  a  man  shall  have  no  more  to  fear  from 
speaking  and  writing  against  them,  than  from  speak- 
ing and  writing  for  them."18  At  about  this  same 
time  James  Mill  also  wrote  his  celebrated  essay  on 
"Liberty  of  the  Press"  and  in  the  pages  devoted  to  a 
discussion  of  equality  of  intellectual  opportunity,  he 
said:  Freedom  of  discussion  means  the  power  of 
presenting  all  opinions  equally,  relative  to  the  sub- 
ject of  discussion;  and  of  recommending  them  by 
any  medium  of  persuasion  which  the  author  may 

"The  Liberty  of  the  Press,  (1821)  pp.  23  to  55. 

18 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

think  proper  to  employ.  If  any  obstruction  is  given 
to  one  sort  of  opinions,  not  given  to  the  delivering  of 
another;  if  any  advantage  is  attached  to  one  sort  of 
opinions,  not  attached  to  the  delivery  of  another,  so 
far  equality  of  treatment  is  destroyed,  and  so  far 
the  freedom  of  discussion  is  infringed;  so  far  truth 
is  not  left  to  the  support  of  her  own  evidence ;  and  so 
far,  if  the  advantages  are  attached  to  the  side  of 
error,  truth  is  deprived  of  her  chance  of  prevailing. 
To  attach  advantage  to  the  delivering  of  one  set  of 
opinions,  disadvantage  to  the  delivering  of  another, 
is  to  make  a  choice."1  It  should  be  added  that  this 
equality  must  be  maintained  even  as  between  sub- 
jects that  are  unrelated,  as  mathematics  and  religion. 
Freedom  is  as  much  abridged  if  we  suppress  all  opin- 
ions upon  a  given  subject  as  when  we  suppress  the 
the  disapproved  opinion  in  relation  thereto.  This 
brings  us  to  a  special  application  of  Herbert  Spen- 
cer's formula  of  freedom  which  is  that  it  consists  in 
the  greatest  liberty  consistent  with  an  equality  of 
liberty.  I  wish  to  digress  from  the  discussion  to  note 
that  Spencer's  formula  does  not  permit  of  applica- 
tion to  cases  wherein  it  becomes  necessary  to  balance 
mere  psychic  factors  against  the  material  things  of 
life,  because  in  such  a  case  there  is  no  common  yard- 
stick by  which  equality  can  be  measured. 

In  the  absence  of  actual  and  material  injury,  if  we 
punish  the  publication  of  falsehood  about  any  par- 
ticular subject,  then  we  must  punish  all  falsehood 
pertaining  thereto.  This,  however,  can  have  no  ap- 
plication to  cases  wherein  the  truth  or  falsity  of  a 
statement  is  purely  speculative  or  transcendental  so 
that  the  exact  sciences  do  not  yet  furnish  inerrant 
standards.  The  rule  of  equality  is  denied  whenever 
we  penalize  unmerited  praise  of  any  given  institu- 
tion without  also  penalizing  the  unmerited  blame, 
and  vice  versa.  Likewise,  the  rule  of  equality  is  vio- 

i»On  Liberty  of  the  Press,  by  James  Mill  in  supplement  to  sixth 
edition  of  Ency.  Britannica,  1821;  reprinted  by  the  Free  Speech  League, 
1912,  with  introduction  by  Theodore  Schroeder,  see  p.  27.  See  also 
appendix  hereto. 

19 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

lated  if  we  permit  impassioned  praise  without  per- 
mitting equally  impassioned  denunciation  of  govern- 
ment or  its  officials,  etc.,  etc. 

Construing  together  this  aspect  of  "due  process  of 
law"  and  the  free  speech  provisions  of  our  constitu- 
tion again  we  must  conclude  thaFfreedom  of  speech 
is  abridged  whenever  the  greatest  equal  intellectual 
opportunity  or  right  is  not  maintained.  We  must 
have  even  an  equal  right  to  be  wrong.  In  other 
words,  the  just  or  unjust  praise,  merely  as  such,  or 
the  passionate  or  dispassionate  denunciation  of  pub- 
lic officials,  laws,  governments  or  revolutions,  cannot 
be  penalized  without  violating  the  equality  guaran- 
teed by  our  Constitutions.  Since  in  these  respects 
the  maintenance  of  equality  has  never  been  possible 
under  any  kind  of  censorship,  therefore  no  statute 
whatever  of  this  character  and  upon  this  subject  can 
be  passed  without  violating  the  Constitution. 

THE  SIXTH  AMENDMENT 

We  may  now  proceed  to  relate  our  interpretation 
of  freedom  of  speech  to  that  provision  of  the  Consti- 
tution which  guarantees  that  persons  accused  of 
crime  "shall  be  informed  of  the  nature  and  cause  of 
the  accusation."  This  means  that  the  accused  must 
be  informed  not  only  of  the  facts  claimed  to  have 
offended,  but  also  the  law,  the  criteria  of  guilt,  by 
which  those  facts  must  be  adjudged  criminal.  In 
other  words,  he  must  be  "informed  by  the  law  as  well 
as  by  the  complaint  what  acts  or  conduct  are  pro- 
hibited and  made  punishable."  "In  a  criminal 
statute,  the  elements  constituting  an  offence  must  be 
so  clearly  stated  and  defined  as  to  reasonably  admit 
of  but  one  construction.  The  dividing  line  between 
what  is  lawful  and  unlawful  cannot  be  left  to  con- 
jecture."' 

Therefore  if  we  interpret  the  free  speech  guaran- 
tee in  relation  to  the  Sixth  Amendment  to  the  Fed- 

20  U.S.  vs.  Capital  Traction  Co.,  34  App.  Cases,  D.C.,  592.     Czarra 
vs.  Medical    Supers.,  25  App.  Cases,  D.C.,  443,  and  cases  cited. 

20 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

eral  Constitution,  we  arrive  at  the  same  conclusion 
as  when  we  connected  it  w'"\  the  Fourteenth  Amend- 
ment, namely:  no  spread  f  ideas  can  be  penalized 
by  making  the  criteria  of  guilt  a  mere  speculation 
about  an  unrealized  psychologic  tendency.  In- 
deed, the  meaning  and  almost  the  identical  words 
might  be  used  here  which  were  used  in  the  corre- 
sponding occasion  herein-above,  in  stating  the  argu- 
ment or  conclusion  against  uncertainty  implied  in 
"due  process  of  law." 

EX  POST  FACTO  LAWS  AND  FREE  SPEECH 

Clearly  related  to  this  problem  of  the  uncertainty 
in  the  criteria  of  guilt — where  guilt  depends  upon 
the  psychologic  tendency — is  the  evil  of  ex  post  facto 
legislation.  When  tyrants  made  no  pretence  to  de- 
cency there  was  no  hesitancy  about  passing  laws 
after  the  fact  to  punish  some  "undesirable  citizen" 
whose  conduct  did  not  come  ^vl^hin  the  letter  of  any 
existing  prohibition*  At  present  one  might  almost 
suspect  that  new  methods  had  been  cunningly  de- 
vised to  accomplish  the  same  result  without  frankly 
affirming  the  propriety  of  creating  criteria  of  guilt 
ex  post  facto.  If  legislatures  are  prohibited  from 
directly  enacting  ex  post  facto  laws  they  cannot  be 
allowed  to  accomplish  the  same  end  indirectly, 
merely  by  the  device  of  leaving  uncertain  the  criteria 
of  guilt  and  thus  delegating  to  the  courts  a  seeming 
authority  for  creating  ex  post  facto  standards  of 
judgment  at  the  trial  of  the  accused.  The  abuses  by 
ex  post  facto  criteria  of  guilt  were  always  most  con- 
spicuously manifested  in  cases  of  political  offenders 
including  such  as  were  accused  of  seditious  libel. 

Thus  an  act  of  25  Edward  III  provided  that  "if 
any  other  case,  supposed  treason,  which  is  not  above 
specified,  doth  happen  before  any  justices,  the  jus- 
tices shall  tarry  without  any  going  to  judgment  of 
the  treason,  till  the  cause  be  showed  and  declared 
before  the  King  and  his  Parliament  whether  it  ought 

21 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

to  be  judged  treason  or  other  felony."21  This  much 
praised  legislation  was  evidently  designed  to  take 
from  the  courts  the  power  to  create  ex  post  facto  cri- 
teria of  guilt  and  vest  that  solely  in  king  and  parlia- 
ment. The  American  constitutions  intended  to  de- 
stroy that  authority  even  as  to  the  legislative  body. 
Unquestionably  the  idea  was  to  destroy  the  last  pos- 
sibility of  punishing  according  to  ex  post  facto 
standards  of  guilt.  What  congress  cannot  do  di- 
rectly it  cannot  do  indirectly  by  handing  back  to 
courts  the  pernicious  power  which  had  already  been 
taken  from  them.  The  purpose  of  this  guarantee  of 
liberty  wras  to  destroy  forever  the  evil  of  such  tyran- 
nous authority,  and  not  merely  to  take  it  from  the 
legislative  branch  in  order  to  place  it  with  the  judi- 
ciary. Lord  Holt,  in  writing  of  seditious  libel,  said 
that  the  offence  was  necessarily  left  as  uncircum- 
scribed  as  the  natural  possibility  of  the  injury.  "The 
enactment  of  the  law  [in  cases  of  libel]  is  contained 
in  the  punishment  of  the  offence."22  That  is  pre- 
cisely the  evil  which  by  the  prohibition  against  ex 
post  facto  legislation,  it  was  sought  to  avoid. 

Now  then,  by  co-relating  this  with  our  free  speech 
provision  we  again  come  to  the  conclusion  that  un- 
abridged freedom  of  speech  and  of  the  press  means 
impunity  in  the  expression  of  every  idea,  as  such, 
and  freedom  from  punishment  under  any  test  of  the 
psychologic  tendency  of  the  offending  article.  Con- 
sequently liberty  of  utterance  is  abridged  if  punish- 
ment follows  upon  any  other  condition  than  that  of 
a  proven  actual  and  material  injury. 

TREASON  AND  FREE  SPEECH 

Again  I  remind  the  reader  that  we  are  not  to  be 
frightened  away  from  the  synthetic  method  merely 
because  its  results  conflict  with  our  emotional  pre- 
dispositions. The  necessity  for  checking  our  feel- 

21  English  Liberties,  p.  64. 

"  Holt  on  the  Law  of  Libel,  p.  37,  edition  1816.  For  further  dis- 
cussion of  ex  post  facto  legislation  in  this  connection,  see:  "Obscene" 
Literature  and  Constitutional  Law,  Chap.  23. 

22 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

ings  makes  this  method  indispensable  for  all  who 
aspire  to  reach  conclusions  dispassionately. 

There  are  some  other  provisions  of  the  Federal 
Constitution  which  have  a  very  direct  relation  to  the 
free  speech  clause.  The  two  I  now  have  in 
mind  are  also  very  intimately  related  to  one  another 
so  that  it  is  almost  necessary  that  they  be  considered 
together.  I  refer  to  the  provision  that  "treason 
against  the  United  States  shall  consist  only  in  levy- 
ing war  against  them,  or  in  adhering  to  their  enemies 
and  giving  them  comfort."  Mere  preparation,  such 
as  might  be  useful  in  war  or  in  resistance  to  govern- 
ment, but  not  followed  by  actual  hostilities,  is  not 
treason,  and  to  make  this  still  more  certain  we  have 
the  second  amendment  which  reads:  "A  well  regu- 
lated militia  being  necessary  to  the  security  of  a  free 
state,  the  right  of  the  people  to  bear  arms  shall  not 
be  infringed." 

I  believe  that  these  provisions  have  the  most  vital 
bearing  of  any  part  of  the  Constitution  upon  the 
problem  of  determining  the  meaning  of  free  speech. 
Even  though  this  language  is  plain,  its  obvious 
meaning  has  often  been  ignored  by  the  courts.  The 
obvious  meaning  can  be  reinforced  here  only  by  a 
mere  outline  of  the  historical  method  of  interpreting 
these  two  constitutional  clauses.  This  will  also 
bring  into  plain  relief  the  interpretation  which  it 
forces  upon  the  guarantee  for  unabridged  free 
speech. 

To  begin  with,  let  us  look  a  little  into  the  history 
of  the  struggle  over  constructive  treasons  and  we  at 
once  get  a  new  light  on  the  constitutional  definition 
of  treason. 

The  statute  of  25  Edward  IV  was  considered  a 
great  improvement  upon  the  prior  laws  of  treason 
because  some  effort  was  made  toward  defining  the 
crime  and  to  that  extent  it  provided  a  check  upon  the 
lawlessness  of  the  judiciary.  For  even  this  little 
relief,  this  was  called  the  "benedictum  parliamen- 
tum"  However,  this  statute  made  express  provi- 

23 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

sion  for  punishing  mental  treason  in  whomsoever 
"doth  compass  or  imagine  the  death  of  our  Lord  the 
King  or  our  lady  the  Queen,  or  of  their  eldest  son 
and  heir." 

This  reminds  us  that  in  the  beginning  all  the 
abridgments  of  freedom  of  utterance  were  designed 
solely  for  protecting  the  aristocrats  in  the  fruits  of 
legalized  injustice  and  vested  wrongs.  It  would 
seem  that  this  chief  reason  for  a  censorship  having 
disappeared,  the  censorship  itself  should  go  under, 
but  it  does  not.  We  have  developed  some  new  and 
sacred  custodians  of  governmental  beneficences. 
After  securing  some  definition  of  the  offence,  the 
next  step  by  which  the  advocates  of  greater  liberty 
sought  their  end  was  an  insistence  that  to  constitute 
guilt — "to  compass  and  imagine  the  death  of  the 
king"— that  undesirable  state  of  mind  must  be  mani- 
fested by  some  overt  act  in  execution  of  its  design 
and  of  such  a  nature  as  was  capable  of  producing 
actual  and  material  injury  to  their  majesties.  The 
opponents  of  freedom  insisted  that  the  mere  utter- 
ance of  treasonable  ideas  was  in  itself  an  overt  act  of 
treason,  and  therefore  an  unexecuted  treasonable 
conspiracy  was  treason.  Under  our  Constitution  a 
contrary  view  must  prevail.23  In  England  the  view 
of  tyrants  usually  prevailed. 

"Divers  later  acts  of  Parliament  have  ordained 
that  compassing  by  bare  words  or  sayings  should  be 
treason.  *  *  *  It  was  wont  to  be  said  that  bare 
words  may  make  a  heretic  but  not  a  traitor  without 
an  overt  act."24  Whether  or  not  mere  words  could 
be  considered  as  overt  acts  was  the  dominant  issue  in 
this  long  controversy.  Lord  Coke  was  among  those 
who  maintained  that  mere  words  should  not  be  con- 
sidered as  overt  acts.  Although  it  was  that  contro- 
versy which  our  Constitutions  were  designed  to 
settle,  yet  the  constitutional  definition  of  treason, 

*  23  Judge  Sprague,  in  his  instruction  to  the  U.S.  Grand  Jury,  Bos- 
ton, Mch.  1861 ;  U.S.  vs.  Hanway,  1  Wall,  Jr.,  139—2  Wall,  Jr.,  204. 
24  English  Liberties,  (by  Henry  Care  and  William  Nelson)  p.  69. 

24 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

standing  alone,  might  still  leave  the  way  open  for 
a  construction  which,  by  merely  changing  the  name 
of  the  crime,  could  yet  punish  a  treasonable  utter- 
ance not  acted  upon.  No  doubt  to  close  this  door 
to  a  possible  thwarting  of  the  original  purpose,  the 
guarantee  of  unabridged  liberty  of  speech  and  press 
was  thought  necessary. 

In  view  of  those  pre-revolutionary  controversies, 
it  is  clear  that  our  free  speech  amendment  must  be 
construed  as  an  aid  to  the  constitutional  definition 
of  treason,  so  as  to  preclude  any  punishment  of  mere 
treasonable  utterance,  as  such,  under  any  name 
whatever.  If  this  were  not  so,  then  we  would  be 
accusing  the  framers  of  our  Constitution  of  the  im- 
becility of  objecting  only  to  the  name  by  which  the 
abridgment  of  freedom  is  designated  instead  of  de- 
siring to  protect  freedom  itself.  Thus  also,  the  syn- 
thetic method  implies  more  generally  that  the  criteria 
of  punishability  for  any  opinion  in  addition  to  its  ex- 
pression must  include  some  overt  act — must  include 
actual  and  material  injury  or  at  least  the  intention 
to  inflict  such  injury  accompanied  by  some  act  which 
(according  to  the  known  physical  laws,  not  according 
to  speculations  about  mere  psychic  tendencies)  were 
adequate  to  work  such  injury. 

3<  This  brings  us  to  the  conclusion  that  the  un- 
abridged freedom  of  speech  guaranteed  by  the  Fed- 
eral Constitution  implies  a  guarantee  of  impunity 
even  in  the  advocacy  of  resistance  to  our  Government 
as  a  whole  and  by  a  necessary  implication  it  guaran- 
tees impunity  in  the  fruitless  and  harmless  advocacy 
of  lesser  crimes.  To  those  who  have  not  considered 
the  question,  our  conclusion  may  seem  a  little  start- 
ling, and  on  account  of  this  adverse  predisposition 
it  becomes  desirable  to  inquire  a  little  deeper  into  the 
reasons  and  precedents  supporting  it. 

Of  course,  ideal  freedom  and  justice  exist  no- 
where. Even  the  modern  relatively  more  refined 
conceptions  of  freedom  and  justice,  imperfect  as 
they  must  be,  are  still  in  the  making  and  are  of  recent 

25 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

date.  In  consequence  of  this  the  precedents  are  so 
uniformly  on  the  side  of  tyranny  that  doubtless 
many  will  be  surprised  to  find  any  precedents  which 
will  furnish  even  a  little  support  for  a  doctrine  of 
liberty  so  antagonistic  to  those  unreasoned  predispo- 
sitions toward  flag-idolatry  which  we  develop  in  our 
schools  by  the  hot-house  method,  and  which  we  mis- 
call patriotism.  Yet  such  precedents  do  exist. 


THE  CASE  OF  REV.  HENRY  SACHEVERELL 

Dr.  Sacheverell  was  impeached  before  the  House 
of  Lords  in  1710.  This,  it  will  be  remembered,  was 
not  long  after  the  revolution  of  1688.  The  language 
of  his  sermon,  which  was  the  chief  item  of  the  indict- 
ment against  him,  was  restated  thus:  "That  the 
grand  security  of  our  government  and  the  very  pil- 
lars upon  which  it  stands  is  founded  upon  the  steady 
belief  of  the  subject's  obligation  to  an  absolute  and 
unconditional  obedience  to  a  supreme  power  in  all 
things  lawful  and  the  utter  illegality  of  resistance 
upon  any  pretext  whatsoever." 

In  the  course  of  the  trial  Sir  John  Holland 
(p.  115)  thus  denounced  the  doctrine  of  non- 
resistance:  "The  doctrine  of  unlimited  unconditional 
passive  obedience  was  first  invented  to  support  arbi- 
trary and  despotic  power  and  was  not  promoted  or 
countenanced  by  any  government  that  had  not  de- 
signs sometime  or  other  of  making  use  of  it."  This 
makes  the  desirability  of  resistance  at  any  particular 
time  a  matter  of  expediency  and  therefore  a  subject 
proper  and  necessary  for  discussion  with  equal  free- 
dom as  between  the  friends  and  opponents  of  resis- 
tance. 

The  Bishop  of  Norwich  (p.  518)  in  giving  his 
reasons  for  voting  for  the  impeachment,  said:  "It 
is  a  maxim  in  politics  that  all  governments  are  best 
supported  by  the  same  methods  and  counsels  upon 

25  HowelFs,  State  Trials,  Vol.  15,  p.  1.  See  also  numerous  pamphlets 
published  on  Dr.  Sache  verell's  case. 

26 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

which  they  are  founded."  As  applied  to  the  case  at 
bar  and  to  the  American  Government,  that  means: 
A  relatively  free  government  founded  upon  a  revo- 
lution is  best  supported  against  a  relapse  into  des- 
potism by  cherishing  the  right  of  revolution  even 
against  itself.  It  also  reminds  us  forcibly  that  a 
government  having  revolution  as  its  origin  cannot 
consistently  nor  properly  suppress  advocates  of  the 
expediency,  timeliness  or  morality  of  another  revolu- 
tion. 

During  the  course  of  the  debate  the  English  revo- 
lution was  defended  by  Dr.  William  Talbot,  Bishop 
of  Oxford,  in  these  words:  "If  it  be  utterly  unlaw- 
ful to  resist  in  any  case  whatever,  even  that  of  a  total 
subversion  of  the  constitution  and  laws,  then  there  is 
no  distinction  of  governments,  of  absolute,  I  mean, 
and  limited ;  or  if  there  be  a  distinction  it  is  a  nominal 
one  without  any  real  difference.  For  what  differ- 
ence is  there  between  princes  governing  arbitrarily 
without  law,  and  governing  arbitrarily  against  law? 
Betwixt  having  no  laws  at  all  and  having  precarious 
laws  that  depend  entirely  on  the  will  of  the  prince 
whether  he  will  observe  one  of  them  or  subvert  them 
all;  and  if  he  does  the  people  cannot  help  them- 
selves." (p.  499.) 

King  James,  in  his  speech  to  Parliament  in  1609, 
said:  "A  king  leaves  [ceases]  to  be  a  king  and  de- 
generates into  a  tyrant  as  soon  as  he  leaves  off  to 
govern  by  law;  in  which  case  the  king's  conscience 
may  speak  to  him  as  the  poor  woman  to  Philip  of 
Macedon,  either  govern  by  law  or  cease  to  be  king." 

So  then  the  preaching  of  the  doctrine  of  absolute 
non-resistance  was  adequate  to  impeach  because  of  a 
recognition  by  the  House  of  Lords  that  the  preserva- 
tion of  the  right  to  revolt  was  essential  to  maintain 
even  that  smaller  measure  of  liberty  under  the  law 
which  was  then  demanded.  On  such  contentions  the 
impeachment  was  voted. 

27 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 
THE  CASE  OF  HUGO  SPENCER  AND  SON 

Among  the  precedents  cited  in  support  of  Dr. 
Sacherverell's  impeachment  was  the  resolution  of 
Parliament  in  relation  to  the  two  Spencers.  In  the 
reign  of  Edward  II  an  act  of  Parliament  was  passed 
to  exile  Hugo  Spencer  and  his  son  and  thereunder 
they  were  banished.  In  article  one  of  this  act  it  was 
charged  that  they  had  "affirmed  and  published  in 
writing  that  homage  and  oath  of  allegiance  were  due 
more  by  reason  of  the  crown  than  by  reason  of  the 
person  of  the  king,  and  that  if  the  king  did  not  de- 
mean himself  according  to  reason  in  the  exercise  of 
his  government,  his  subjects  might  remove  him,  and 
since  that  removal  could  not  be  by  course  of  law, 
they  might  therefore  remove  him  by  force." 

A  subsequent  Parliament  repealed  this  act  of  ban- 
ishment and  the  king  was  deposed  by  force.  This 
later  act  of  Parliament  gives  us  the  highest  prece- 
dent for  the  proposition  that  our  several  constitu- 
tional guarantees  were  designed  to  acknowledge  the 
right  of  ultimate  resistance  and  consequently  the 
right  openly  and  frankly  to  defend  the  proposition 
that  at  any  particular  time  resistance  was  or  is  justi- 
fiable and  necessary.  It  was  not  the  purpose  of  our 
revolutionary  ancestors  to  penalize  mere  revolu- 
tionary utterances. 

Later  it  will  be  shown  that  the  idea  behind  this 
proposition  was  that  if  the  right  to  resistance  was 
freely  conceded,  then  actual  resistance  would  seldom 
become  necessary.  Of  course,  when  hostilities  are 
actually  begun,  then  all  must  take  the  fate  of  war, 
since  no  abstract  principles  of  liberty  or  of  right  will 
ever  restrain  the  combatants. 

THE  RIGHT  TO  CARRY  ARMS 

Thus  far  we  have  examined  the  significance  of  the 
free  speech  clause  in  relation  to  the  constitutional 
definition  of  treason  and  have  again  reached  the  con- 
clusion that  unabridged  free  speech  means  the  right 

28 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

to  advocate  treason  (or  lesser  crimes)  so  long  as  no 
overt  criminal  act  is  induced  as  a  direct  consequence 
of  its  advocacy.  We  must  inquire  how  far  this  con- 
clusion is  confirmed  by  the  constitutional  guarantee 
to  carry  arms. 

Again  the  obvious  import  is  to  promote  a  state  of 
preparedness  for  self-defense  even  against  the  inva- 
sions of  government,  because  only  governments  have 
ever  disarmed  any  considerable  class  of  people  as  a 
means  toward  their  enslavement.  It  remains  to  ask 
how  this  view  is  supported  by  the  historic  conflicts 
preceding  our  American  Revolution. 

Our  revolution  only  extended  the  principles  of 
freedom  of  the  English  revolution  of  1688.  At  that 
time,  to  preclude  the  government  from  going  into 
rebellion  against  the  people  and  to  check  its  power, 
the  revolutionists  planted  themselves  firmly  upon 
these  propositions:  (1)  The  illegality  of  raising 
money  for  the  use  of  the  Crown  without  grant  of 
Parliament;  (2)  The  illegality  of  the  power  claimed 
by  the  king  to  suspend  laws  or  the  execution  of 
laws;  (3)  The  illegality  of  a  standing  army  without 
consent  of  Parliament. 

Here,  as  in  the  case  of  Magna  Charta  or  our  Amer- 
ican revolutions,  parchment  liberties  are  not  long 
respected  unless  backed  up  by  an  adequate  public 
opinion  and  physical  force.  So  these  restrictions  like 
the  others  were  ignored  when  in  the  contest  for  pow- 
er this  seemed  desirable.  Let  us  not  forget  that  it 
has  always  been  merely  a  contest  for  power  rather 
than  for  principles,  though  the  latter  sometimes  fur- 
nished the  pretext  behind  which  the  lust  for  power 
was  bulwarked.  Thus  it  happened  that  often  the 
precedents  and  principles  of  liberty  were  promoted 
even  bv  tories.26 

In  the  English  Bill  of  Rights  dated  Feb.  13,  1688, 
among  the  grievances  charged  and  to  be  eliminated 

z«  The  Revolution  of  1688:  The  Origin  of  its  Principles.  The  Month- 
ly Law  Magazine,  July  1838,  Vol.  2,  No.  6,  p.  161;  Aug.  1838,  Vol.  9, 
No.  7,  p.  321;  Sept.  1838,  VoL  2,  No.  8,  p.  477. 

29 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

was  the  "keeping  a  standing  army  within  the 
kingdom  in  time  of  peace  without  consent  of  parlia- 
ment," which  supposedly  represents  the  people.  An- 
other complaint  was  that  of  "causing  several  good 
subjects,  being  protestants,  to  be  disarmed  and  em- 
ployed contrary  to  law."27  If  we  are  to  erect  this 
complaint  against  disarming  part  of  the  people  into 
a  general  principle,  it  must  be  that  in  order  to  main- 
tain freedom  we  must  keep  alive  both  the  spirit  and 
the  means  of  resistance  to  government  whenever 
"government  is  in  rebellion  against  the  people,"  that 
being  a  phrase  of  the  time.  This  of  course  included 
the  right  to  advocate  the  timeliness  and  right  of  re- 
sistance. 

The  reformers  of  that  period  were  more  or  less 
consciously  aiming  toward  the  destruction  of  govern- 
ment from  over  the  people  in  favor  of  government 
from  out  of  the  people,  or  as  Lincoln  put  it,  "gov- 
ernment of,  for  and  by  the  people."  Those  who  saw 
this  clearest  were  working  towards  the  democratiza- 
tion of  the  army  by  abolishing  standing  armies  and 
replacing  them  by  an  armed  populace  defending 
themselves,  not  being  defended  and  repressed  by 
those  in  whose  name  the  defence  is  made.28 

Upon  these  precedents,  others  like  them,  and  upon 
general  principles  reformers  like  DeLolme  and  John 
Cartwright  made  it  plain  that  the  right  to  resist  gov- 
ernment was  one  protected  by  the  English  Constitu- 

27  Rapin's   History  of  England. 

28  Examine:  Andrew  Fletcher  of  Saltoun,  A  Discourse  of  Govern- 
ment with  Relation  to  Militia;  A   Discourse  on  National  and  Consti- 
tutional Force,  (1757);  Cartwright's  "A  Bill  of  Free  and  Sure  Defence 
for  Constitutional  Revival  of  County  Power;  Constitutional  Maxims; 
The    British    Constitution    Vindicated,    and    Indefeasible    Hereditary 
Right,  Unlimited  Passive  Obedience  and  Non-Resistance  Examined  by 
Scripture  and  History  and   Proved  to  be  Absurd,  etc.,  etc.,   Anony- 
mous, London,  1716;  Sir  William  Jones  on  The  Legal  Means  of  Sup- 
pressing Riots;   Cartwright's  Defence  of  the  Constitutional  Right  to 
Organize  a  Revolution  will  be  annexed  as  a  supplement  hereto,  and  in 
that  connection  should  be  read  Thomas  Jefferson's  letter  to  Cartwright 
commending  the  latter's  book,  and  Jefferson's   plan  for  the  military 
forces  of  Virginia. 

30 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

tion.29  DeLolme's  book  is  known  to  have  had  great 
influence  with  the  makers  of  our  constitutions,  and 
Cartwright's  argument  was  endorsed  by  Thomas 
Jefferson  in  a  letter  to  the  author. 

THE  RIGHT  TO  PETITION 

Of  course  the  aristocrats  were  going  to  the  other 
extreme  in  defence  of  their  evil  advantage.  They 
made  it  a  crime  to  argue  against  hereditary  rights 
even  though  no  direct  and  specific  reflections  upon  a 
government  were  made.30  This  because  "everything 
is  criminal  which  interrupts  the  established  order  of 
society/'31  They  argued  that  "wantonly  to  defame 
and  indecorously  to  calumniate  the  economy,  order 
and  constitution  of  things  which  make  up  the  gen- 
eral system  of  law  and  government  of  the  country" 
was  a  crime  because  this  discredited  the  authority  by 
which  they  secured  for  themselves  personal  advan- 
tage. So  they  said:  "No  government  could  support 
itself  if  a  demagogue  could  come  forward  every  year 
and  call  a  meeting  to  petition  government  to  dissolve 
itself."  Thus  spake  Lord  Holt32  in  justification  of 
the  very  antithesis  of  all  that  the  libertarians  already 
quoted  contended  for.  Our  American  revolution 
and  constitutions  decided  that  conflict  in  favor  of  the 
former  doctrine  and  therefore  our  constitution  pro- 
vides a  guarantee  for  "the  right  of  tlie  people  peace- 
ably to  assemble  and  to  petition  the  government 
for  a  redress  of  grievances."  Recent  American 
legislation  with  the  aid  of  the  courts  has  re-estab- 
lished a  worse  doctrine  than  any  I  have  quoted  as 
obtaining  formerly  in  England.33 

2»DeLolme,  The  English  Constitution,  p.  213,  Bohn  Edition,  1853; 
John  Cartwright,  The  English  Constitution  Produced,  pp.  350,  111, 
104,  Edition  of  1823. 

so  Reg.  vs.  Bedford,  11  State  Trials,  121,  Gilb.  Rep.  K.B.  297. 
8i  Holt's  Law  of  Libel,  p.  42,  Edition  of  1816,  etc. 

32  Holt  quoted  in  Mence  on  Libel,  167,  etc.  Holt  pp.  81,  85— 16th 
Edition. 

83  People  vs.  Fox.  127  Pac.  Rep.  1111,  and  generally  decisions  under 
anti-anarchist  laws,  rout,  disorderly  conduct,  etc. 

31 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 
CONSTITUTION  AND  DECLARATION  OF  INDEPENDENCE 

The  blindness  and  lawlessness  of  some  of  our 
courts  suggest  an  urgent  necessity  for  at  least  a  lit- 
tle more  searching  of  the  records  for  the  confirma- 
tion of  our  theory  as  to  the  meaning  of  unabridged 
freedom  of  utterance.  This  brings  us  to  an  examina- 
tion of  American  records  and  here  I  may  say  that 
the  judicial  dogmatism  by  its  blind  reversion  to  the 
precedents  of  English  tyrants  is  of  no  aid  except  to- 
ward a  measuring  of  the  judicial  intellect. 

"The  words  of  the  constitution  should  be  given  the 
meaning  they  were  intended  to  bear  when  the  instru- 
ment was  framed."34  Especially  in  determining  the 
right  of  revolutionists  to  express  their  minds  this 
compels  us  to  look  into  the  sentiments  of  our  revo- 
lutionary forefathers  for  "It  is  always  safe  to  read 
the  letters  of  the  constitution  in  the  spirit  of  the  Dec- 
laration of  Independence.  No  duty  rests  more  im- 
peratively upon  the  courts  than  the  enforcement  of 
those  constitutional  provisions  intended  to  secure  the 
equality  of  right  which  is  the  foundation  of  free  gov- 
ernment."35 

But  the  Declaration  of  Independence  affirms  that 
"whenever  any  form  of  government  becomes  destruc- 
tive of  these  ends  [liberty,  justice,  etc.,]  it  is  the 
right  of  the  people  to  alter  or  to  abolish  it,"  and  this 
was  their  justification  for  the  forcible  resistance 
which  was  then  used.  Construing  the  right  to  carry 
arms  and  the  constitutional  definition  of  treason  in 
the  spirit  of  the  Declaration  of  Independence,  we 
must  conclude  that  these  are  but  attempts  to  preserve 
equally  the  means  of  resisting  with  the  means  of  up- 
holding government.  Then  co-ordinating  this  con- 
clusion with  the  meaning  of  the  free  speech  clause, 
we  conclude  that  it  was  designed  to  maintain  an 
equality  of  intellectual  opportunity  between  those 

*«  Scott  vs.  Sandford,  19  How.    393;  15  Law.  Ed.  52—691. 
•"'•  Gulf  E.  &  St.  F.  Rjr.  vs.  Ellis,  165  U.S.,  160. 

32 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

who  might  wish  to  uphold  and  those  who  would  over- 
throw the  government.38 

THE  CONTINENTAL  CONGRESS  ON  FREE  SPEECH 

By  reading  the  century-old  arguments  in  support 
of  this  view  of  free  speech,  we  see  that  the  demand 
for  it  was  made  in  the  belief  that  the  best  way  to 
avoid  a  revolution  was  to  allow  full  intellectual  free- 
dom for  its  promotion  because  this  would  best  warn 
corrupt  officials  and  induce  their  reform.  So  free- 
dom to  advocate  revolution  is  the  best  way  to  avoid 
all  unnecessary  revolution.  Such,  I  believe,  was  the 
plainly  expressed  opinion  of  the  Continental  Con- 
gress when  considering  the  subject  of  the  freedom  of 
the  press.  It  is  worth  while  to  quote  again  their  ex- 
plicit language  as  to  the  purpose  of  mental  free- 
dom.37 

"The  last  right  we  shall  mention,  regards  the  free- 
dom of  the  press.  The  importance  of  this  consists, 
besides  the  advancement  of  truth,  science,  morality 
and  arts  in  general,  in  its  diffusion  of  liberal  senti- 
ments on  the  administration  of  government,  its  ready 
communication  of  thoughts  between  subjects,  and  its 
consequential  promotion  of  union  among  them, 
whereby  oppressive  officials  are  shamed  or  intimi- 
dated into  more  honorable  or  just  modes  of  conduct- 
ing affairs." 

The  same  conclusion  as  to  the  meaning  of  freedom 
of  speech  is  conclusively  pointed  out  by  the  Virginia 
legislature  and  later  approved  by  the  Federal  Su- 
preme Court.  The  legislative  resolution  was  drawn 
by  Thomas  Jefferson  to  ensure  religious  toleration 
and  by  defining  specifically  the  limits  of  religious  tol- 
eration it  furnished  general  criteria  by  which  to  de- 
termine the  limits  of  every  other  kind  of  toleration. 

s«  For  the  arguments  of  the  time  in  support  of  this  view  of  the  right 
see:  James  Mill  on  the  Liberty  of  the  Press,  also  Jeremy  Bentham, 
quoted  above. 

3T  Address  to  the  Inhabitants  of  Quebec,  Oct  28,  1774,  Journal  of 
the  Continental  Congress,  Vol.  1,  p.  108,  Ed.  of  1904. 

33 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

Here  is  the  language  of  the  resolution:  "To  suffer 
the  civil  magistrate  to  intrude  his  power  into  the  field 
of  opinion,  or  to  restrain  the  profession  or  propaga- 
tion of  principles,  on  supposition  of  their  ill  tendency 
is  a  dangerous  fallacy  which  at  once  destroys  all  lib- 
erty because  he,  being  of  course  judge  of  that  ten- 
dency, will  make  his  opinions  the  rule  of  judgment, 
and  approve  or  condemn  the  sentiments  of  others 
only  as  they  shall  square  with  or  differ  from  his  own. 
It  is  time  enough  for  the  rightful  purpose  of  civil 
government  for  its  officials  to  interfere  when  princi- 
ples break  out  into  overt  acts  against  peace  and  good 
order."™ 

The  celebrated  Dr.  Benjamin  Rush  was  famous 
among  the  signers  of  the  Declaration  of  Independ- 
ence, and  until  his  death  was  treasurer  of  the  United 
States  Mint.  In  1787,  the  same  year  in  which  he  sat 
as  a  member  of  the  convention  of  Pennsylvania  for 
the  adoption  of  the  Federal  Constitution,  he  express- 
ed his  views  about  the  establishment  of  a  postal  sys- 
tem, in  which  he  furnished  an  interesting  sidelight  on 
freedom  of  the  press  as  understood  by  our  revolu- 
tionary forefathers. 

Concerning  the  Postoffice,  these  are  his  words: 
"For  the  purpose  of  diffusing  knowledge,  as  well  as 
extending  the  living  principle  of  government  to 
every  part  of  the  United  States — every  state,  city, 
county,  village  and  township  in  the  Union  should  be 
tied  together  by  means  of  the  postoffice.  This  is  the 
true  non-electric  wire  of  government.  It  is  the  only 
means  of  conveying  heat  and  light  to  every  individu- 
al in  the  federal  commonwealth.  '  Sweden  lost  all  her 
liberties,'  says  the  Abbe  Raynal,  because  her  citizens 
were  so  scattered  that  they  had  no  means  of  acting  in 
concert  with  each  other.'  It  should  be  a  constant  in- 
junction to  the  postmasters,  to  convey  the  news- 
papers free  of  all  charge  for  postage.  They  are  not 
only  the  vehicle  of  knowledge  and  intelligence,  but 

as  Reynolds  vs.  U.S.,  98  U.S.,  163. 

34 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

the  sentinels  of  the  liberties  of  our  country."39 

JEFFERSON  FOR  REVOLUTIONISTS 

In  Reynolds  vs.  U.S.,  already  quoted,  the  United 
States  Supreme  Court  in  speaking  of  intellectual  lib- 
erty referred  to  Thomas  Jefferson  as  "the  acknowl- 
edged leader  of  the  advocates  of  the  measure"  for 
freedom  of  utterance  and  "his  words  are  an  authori- 
tative declaration  of  the  scope  and  effect"  of  the  first 
amendment. 

It  will  be  observed  that  Jefferson's  criteria  as  to 
constitutional  freedom  of  utterance  very  clearly 
point  to  the  doctrine  that  this  shall  include  freedom 
for  the  fruitless  advocacy  of  revolution  and  implied- 
ly  all  lesser  disturbances  of  peace  and  good  order. 
It  is  important,  however,  that  this  shall  not  be  left  to 
mere  inference  from  the  general  language  used  in 
the  criterion  offered.  Because  the  immediate  occasion 
for  the  language  used  was  religious  toleration,  it 
might  be  argued  that  Jefferson  would  perhaps  have 
changed  his  mind  had  he  contemplated  the  applica- 
tion of  his  general  language  to  the  subject  of  rebel- 
lion. This  then  raises  a  question  as  to  Jefferson's  at- 
titude towards  revolutions  in  general  and  the  tolera- 
tion of  their  promoters.  Fortunately,  here  we  are 
again  able  to  quote  his  explicit  language  which  leaves 
no  room  for  doubt  or  argument.  In  a  letter  to 
James  Madison  written  in  1787,  on  the  subject  of  re- 
bellion, Jefferson  said:  "I  hold  that  a  little  rebellion 
now  and  then  is  a  good  thing  and  as  necessary  in  the 
political  world  as  a  storm  is  in  the  physical  *  * 
An  observation  of  this  truth  should  render  honest 
republican  governors  so  mild  in  their  punishment  of 
rebellions  as  not  to  discourage  them  too  much.  It 
is  a  medicine  necessary  for  the  sound  health  of  gov- 
ernment."40 

3»  Principles  and  Acts  of  the  Revolution  by  Niles,  235. 

«  Ford's  Edition  of  Jefferson's  works  p.  362-363 ;  see  also  his  letter 
to  Mrs.  John  (Abigal)  Adams,  Feb.  22,  1787,  vol.  4,  p.  370. 

35 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

That  the  rebellion  here  referred  to  was  not  a  blood- 
less one  appears  from  Jefferson's  letter  to  Stephen 
Smith,  Nov.  13,  1792.41 

"Can  history  produce  an  instance  of  rebellion  so 
honorably  conducted  [referring  to  Shay's  rebellion]  ? 
I  say  nothing  of  its  motives;  they  were  founded  in 
ignorance,  not  wickedness.  God  forbid  that  we 
should  ever  be  twenty  years  without  such  a  rebellion 
*  *  *  What  country  before  ever  existed  a  century 
and  a  half  without  a  rebellion,  and  what  country  can 
preserve  its  liberties  if  their  rulers  are  not  warned 
from  time  to  time  that  their  people  preserve  the  spirit 
of  resistance?  Let  them  take  arms.  The  remedy  is 
to  set  them  right  as  to  facts ;  pardon  and  pacify  them. 
What  signify  a  few  lives  lost  in  a  century  or  two? 
The  tree  of  liberty  must  be  refreshed  from  time  to 
time  with  the  blood  of  patriots  and  tyrants." 

These  letters,  it  must  be  remembered,  were  writ- 
ten before  the  passage  of  the  Alien  and  Sedition 
Law.  In  the  campaign  of  1799-1800,  Jefferson  went 
before  the  people  on  the  issue  of  the  constitutionality 
of  the  Alien  and  Sedition  Law  and  won  a  signal  vic- 
tory upon  the  very  issue  of  his  interpretation  of  free- 
dom of  speech.  Here  then,  is  the  view  of  the  Ameri- 
can people  as  a  whole,  voting  on  the  very  issue  of 
the  interpretations  of  the  free  speech  amendment  to 
the  constitution  and  very  soon  after  the  adoption  of 
that  amendment.  This,  Jefferson's  pardon  of  all 
convicts  under  that  law42  and  the  resultant  action  of 
Congress  in  returning  the  fines  which  had  been  paid 
thereunder,  following  as  that  did,  the  almost  con- 
temporary mandate  of  the  people,  give  for  our  in- 
terpretion  of  free  speech,  the  highest  sanction  that 
any  conclusion  of  constitutional  interpretation  ever 
had. 

TOWARD   THE    BROADER    SYNTHESIS 

Thus  the  application  of  the  synthetic  method  of 
constitutional  construction  has  quite  irresistibly  led 

<i  VoL  4,  p.  467.     Ford's  edition  of  Jefferson's  works. 
«  See  Booth  vs.  Rycroft,  3  Wise.  Rep.,  183. 

36 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

us  to  the  conclusion  that  the  unabridged  freedom  of 
speech  guaranteed  by  our  constitution  means  the 
right  to  express  with  impunity  any  idea  whatever  so 
long  as  its  mere  presentation  is  the  only  factor  in- 
volved. If  we  are  seeking  criteria  of  general  liberty 
which  could  be  applied  to  all  cases,  we  may  generalize 
the  conclusion  as  to  freedom  in  ideas,  to  freedom  as  to 
all  conduct  not  involving  actual  and  material  injury 
and  exclude  all  such  from  the  operations  of  govern- 
ment. Then  we  shall  have  one  important  factor  to- 
ward a  formula  of  general  liberty. 

This  partial  and  tentative  conclusion  could  proba- 
bly be  confirmed  by  a  study  of  the  judicial  opinions 
which  uphold  liberty  by  the  customary  crude  empir- 
ical inductions.  By  a  succession  of  these,  progressive- 
ly more  inclusive,  and  by  ignoring  the  dogmatic  ex- 
ceptions to  general  ideas  of  liberty  by  which  justices 
merely  evince  their  tyrannical  predispositions,  we  can 
arrive  at  a  rational  generalization  as  to  the  kind  of 
conduct  which  constitutionally  may  become  the  sub- 
ject of  a  governmental  regulation. 

Complete  criteria  of  constitutional  liberty  must 
cover  criteria  as  to  ( 1 )  the  source  of  the  regulation ; 
(2)  the  formalities  of  its  enactment  and  promulga- 
tion; (3)  the  .  acts  properly  subjected  to  regulation; 
(4)  the  qualities  of  the  regulation  itself.  So  far  as 
I  am  informed  the  first  two  of  these  do  not  involve 
specially  difficult  problems,  but  this  may  be  due  to 
the  fact  that  I  have  not  sufficiently  studied  these 
phases  of  the  problem. 

We  have  already  considered  somewhat  the  essen- 
tials of  constitutionality  of  means  by  which  liberty 
may  be  curtailed  as  to  subject  matter  legitimately 
within  the  province  of  regulation.  These  also  can  be 
generalized  and  form  another  important  factor  in  the 
criteria  of  freedom.  Thus  we  arrive  at  the  require- 
ments of  generality  of  application,  certainty  of 
meaning  and  equality  of  all  the  individuals  similarly 
situated. 

Another  element  of  freedom  is  the  personal  one  as 

37 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

to  which  not  much  controversey  arises.  This  involves 
the  relation  of  the  individual  to  the  state,  and  ex- 
cludes from  the  usual  rule  all  those  who  are  imbeciles, 
insane,  immature  and  those  who,  having  capacity, 
give  their  consent  without  fraud  being  practiced  up- 
on them  and  consciously  assume  the  risk  of  particular 
conduct. 

I  cannot  take  the  space  to  reproduce  all  these  pro- 
cesses but  must  rely  upon  the  intelligence  of  the 
reader  to  extend  the  methods  already  indicated  and 
thereby  to  check  my  statements  of  the  result.  Thus 
successively  we  combine  general  statements  to  give 
us  criteria  of  liberty  as  a  whole.  I  will  conclude  here 
by  offering  tentatively  such  a  general  statement  as 
to  constitutional  liberty  as  our  courts  have  said  can- 
not be  made.  This  may  need  amplification,  especial- 
ly as  to  matters  upon  which  there  is  the  least  contro- 
versy. 

Under  the  constitution  social  liberty  means 
state  protection  in  a  conceded  claim  of  right  to  free- 
dom from  all  artificial  interference  or  human  penal- 
ty in  the  pursuit  of  any  course  of  action,  except  that 
which  in  its  necessary  and  most  immediate  result  in- 
flicts actual  and  material  injury  upon  someone  other 
than  a  sane,  normal  adult,  participant  therein  or  con- 
sentant  thereto  and  consciously  assuming  the  risk 
thereof;  or  upon  one  whose  consent  was  induced  by 
fraud  or  the  coercive  influence  of  human  artifice. 
As  a  means  to  this  end  the  legislature  may  protec- 
tively regulate  the  imminent  danger  of  actual  and 
material  injury  but  this  must  be  done  only  in  such 
a  way  as  not  to  prevent  or  impair  any  single  social  or 
personal  use  of  that  which  is  dangerous — and  the 
dangerousness  must  be  determined  in  each  instance 
only  by  known  physical  laws.  Moreover,  social  reg- 
ulations must  emanate  from  those  specifically  author- 
ized to  make  them,  and  must  be  enacted  and  promul- 
gated in  the  manner  prescribed  by  the  fundamental 
law.  Besides,  in  content  the  regulations  must  be 
general  in  form,  certain  in  meaning,  of  prior  publi- 

38 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

cation  and  necessarily  equal  in  their  applicability  to 
all  persons  in  the  same  relations  to  one  another  and 
holding  the  same  natural  relation  to  the  government ; 
and  finally  such  protective  regulations  must  be  mani- 
festly the  most  appropriate  means  for  promoting  the 
authorized  end. 

Before  the  fourteenth  amendment,  it  was  held  that 
previous  amendments  imposed  restrictions  only  upon 
federal  authority.  Then  the  fourteenth  amend- 
ment to  the  federal  constitution  withdrew  even  from 
the  states  all  authority  to  deprive  anyone  of  "liberty*' 
without  "due  process  of  law."  The  question  now  is, 
what  "liberty"  is  thus  protected  against  even  state- 
abridgment?  Obviously  the  constitution  is  the  most 
important  source  of  expressed  information  as  to 
what  is  meant  by  constitutional  liberty.  Necessarily 
then,  in  the  fourteenth  amendment  "liberty"  can 
mean  only  those  fundamental  liberties  (and  must 
have  been  intended  to  include  them  all)  which  by 
previous  amendments  had  been  deemed  sufficiently 
important  to  be  expressly  withdrawn  from  federal, 
authority,43  (not  forgetting  the  fifth  which  already 
embodied  the  same  general  language) .  But  the  liber- 
ties guaranteed  by  earlier  amendments  to  the  federal 
constitution  are  those  which  were  synthetized  in  the 
hereinbefore  stated  general  criteria  of  constitutional 
liberty.  It  therefore  follows  that  by  virtue  of  the 
fourteenth  amendment  the  above  stated  criteria  of 
constitutional  liberty  are  controlling  even  as  to  the 
conflict  of  state  legislation  with  the  federal  constitu- 
tion. 

The  judicial  mind  often  does  not  work  essentially 
different  from  the  mind  of  a  child.  In  consequence 
of  this  judges  are  quite  often  unable  to  distinguish 
between  what  the  constitution  does  say  and  what  the 
judge  thinks  it  ought  to  say.  Since  it  never  has  been 
a  judicial  habit  to  promote  liberty,  there  is  no  likeli- 

«  See,  State  vs.  Loomis,  115  Mo.  Rep.  307;  22  So.  W.  Rep.  350-351; 
21   L.R.A.  789. 

89 


METHODS  OF  CONSTITUTIONAL  CONSTRUCTION 

hood  that  these  criteria  of  constitutional  liberty  will 
be  either  generally  or  immediately  incorporated  into 
the  judicial  decisions. 

It  is  doubtless  true  that  no  such  generalization  can 
be  made  which  will  fit  into  all  whimsical  predisposi- 
tions or  satisfy  the  lust  for  power  of  our  judges  and 
legislators.  These  will  be  ignored  by  sensible  men 
who,  for  correction,  will  not  refer  the  foregoing  par- 
agraph to  their  "inner  consciousness,"  but  will  apply 
only  the  scientific  method.  From  such  persons  criti- 
cism will  be  helpful  and  welcome  and  probably  will 
result  in  discovering  some  necessary  amendment  to 
the  formula  suggested. 

It  should  be  added  that  the  above  statement  as  to 
the  dividing  line  between  liberty  and  the  tyranny  of 
the  police  power  is  not  conceived  as  an  ultimate  and 
final  statement  of  the  limits  of  liberty  as  these  might 
obtain  among  people  of  highly  cultivated  social  con- 
sciousness. Our  liberties  will  always  be  in  the  mak- 
ing and  some  future  society  will  doubtless  conceive 
a  different  social  organism  wherein  different  essen- 
tials of  liberty  will  prevail.  The  formula  herein- 
above  offered  is  designed  only  to  cover  the  highest 
conception  of  liberty  to  be  derived  by  the  scientific 
method  from  our  constitution  and  an  ideal  that  we 
should  work  toward  and  may  hope  to  realize  in  prac- 
tice under  our  present  governmental  machinery. 


40 


FOREWORD  TO  APPENDIXES 

The  purpose  of  all  free  speech  propaganda  is  to 
increase  intellectual  hospitality  to  the  end  that  more 
truth  may  prevail.  To  preach  generally  the  duty  or 
advantage  of  tolerance  is  seldom  effective  because 
very  few  persons  have  intellectual  capacity  for  the 
adequate  grasp  of  advantages  so  remote  as  are  those 
belonging  to  the  love  of  truth  in  the  abstract  or  of 
general  ideas  and  a  still  smaller  number  have  the  in- 
clination and  courage  to  give  to  general  principles 
a  consistent  deductive  application. 

Just  as  we  compel  children  to  attend  school,  so 
one  may  be  tempted  to  use  force  in  compelling 
people  to  listen  to  some  unpopular  doctrine,  as  the 
only  way  to  show  them  that  no  idea  is  so  preposter- 
ous as  to  merit  suppression,  or  so  dangerous  as  is 
generally  believed.  As  an  improvement  on  such 
compulsory  education  of  the  adults  with  immature 
minds,  I  would  persuade  them  to  read  and  try  to  un- 
derstand a  few  of  the  most  revolutionary  books  in 
each  of  those  fields  of  thought  where  taboo  and  ana- 
thema are  most  in  evidence. 

In  this  pamphlet  we  are  concerned  only  with  legal- 
olitry  and  the  political  and  economic  heretics  whom 
it  suppressed.  In  the  following  appendices  are  re- 
produced some  discussions  which  are  quite  inacces- 
sible to  American  readers  and  which  have  a  direct 
bearing  upon  the  constitutional  problems  discussed 
and  the  conclusions  reached  in  the  foregoing  essay. 

Those  who  care  to  understand  the  mental  attitude 
of  intelligent  disbelievers  in  the  worship  of  law  and 
order  should  read  a  little  of  the  more  famous  litera- 
ture of  revolt.  Here  I  recommend:  "Existing  Cir- 
cumstances the  Watchword  of  Despotism" ;  Colonel 
Sexby's,  "Killing  no  Murder";  Edmund  Burke's, 
"Vindication  of  Natural  Society" ;  Sir  James  Mack- 

41 


FOREWORD  TO  APPENDIXES 

intosh's,  "Defense  of  the  French  Revolution"; 
Henry  D.  Thoreau's,  "Duty  of  Civil  Disobedience"; 
Elisee  Reclus',  "Evolution  and  Revolution";  Prince 
Kropotkin's,  "Law  and  Authority";  Robert  Spence 
Watson's,  "Proper  Limits  of  Obedience  to  Law"; 
Herbert  Spencer's,  "Right  to  Ignore  the  State"; 
Henry  W.  Nevinson's,  "Rebellion";  and  Brand 
Whitlock's,  "On  The  Enforcnment  of  Law  in 
Cities." 

At  present  the  beneficiaries  of  vested  wrongs 
and  legalized  injustice  are  cultivating  a  species  of 
patriotic  lilliputian  who  in  the  press,  from  the  pulpit 
and  the  judicial  bench  compels  the  repudiation  of  all 
the  radical  principles  on  which  this  government  was 
founded.  Those  who  wish  to  see  the  contrast  between 
the  principles  of  real  patriots  and  the  patriots  of 
principal  should  contrast  the  utterances  of  some  of 
the  founders  of  this  government  with  those  relatively 
mild  and  conservative  utterances  for  which  men  are 
now  being  sent  to  jail.  It  is  only  by  such  comparison 
that  one  can  adequately  appreciate  how  far  America 
has  been  Russianized. 

Even  men  like  General  Burgoyne  could  see  the 
likeness  between  the  divine  right  of  kings  and  the 
present  superstitious  apotheosis  of  a  majority.  Gen- 
eral Burgoyne  in  a  letter  to  General  Lee  said:  "I 
am  ready  to  acknowledge  that  the  same  resistance 
applies  as  forcibly  against  the  abuses  of  the  collec- 
tive body  of  power  as  against  those  of  the  crown  or 
either  of  the  component  branches  separately."1 

In  an  answer  of  the  House  of  Representatives  of 
Massachusettes  to  Gov.  T.  Hutchinson  and  dated 
March  2,  1773,  this  is  said:  "It  is  consent  alone  that 
makes  any  human  laws  binding;  and,  as  a  learned 
author  observes,  a  purely  voluntary  submission  to 
an  act,  because  it  is  highly  in  our  favor  and  for  our 
benefit,  is  in  all  equity  and  justice,  to  be  deemed  as 
not  at  all  proceeding  from  the  right  we  include  in 

1  Principles  and  Acts  of  the  Revolution,  p.  121. 

42 


DC 

UNIVE; 


FORE  WORD  TO  APPENDIXES  \£«  LI  £o  R  N  ^ 

the  legislators,  that  they  thereby  obtain  an  authority 
over  us,  and  that  ever  hereafter,  we  must  obey  them 
of  duty."2 

Such  legislators  would  now  be  called  anarchists 
and  undesirable  citizens.  Dr.  Benjamin  Church  in 
an  oration  delivered  at  Boston,  March  5,  1773,  said: 
"The  constitution  of  a  magistrate  does  not,  there- 
fore, take  away  that  lawful  defence  against  force 
and  injury,  allowed  by  the  law  of  nature* — *  As 
a  despotic  government  is  evidently  productive  of  the 
most  shocking  calamities,  whatever  tends  to  restrain 
such  inordinate  power,  though  in  itself  a  severe  evil, 
is  extremely  beneficial  to  society;  for  where  a  de- 
grading servitude  is  the  detestable  alternative,  who 
can  shudder  at  the  reluctant  poignard  of  a  Brutus, 
the  crimsoned  axe  of  a  Cromwell,  or  the  reeking 
dagger  of  a  Ravillac."3  That  of  course  conflicts  vio- 
lently with  our  modern  well-trained  slavishness,  but 
not  the  sentiment  of  our  revolutionary  fathers. 

Benjamin  Hichborn,  Esq.,  in  an  oration  delivered 
at  Boston,  March  5, 1777,  said:  "The  right  that  every 
individual  has  to  reason  freely  upon  the  nature  of 
that  government  he  is  called  to  submit  to,  having  na- 
ture for  its  source,  is  no  less  obvious  and  perceptible— 
and  hence,  as  a  necessary  foundation  for  the  exercise 
of  this  right,  I  define  civil  liberty  to  be,  not  'a  govern- 
ment by  laws,'  made  agreeable  to  charters,  bills  of 
rights  or  compacts,  but  a  powrer  existing  in  the  people 
at  large,  at  any  time,  for  any  cause,  or  for  no  cause, 
but  their  own  sovereign  pleasure,  to  alter  or  annihil- 
ate both  the  mode  and  essence  of  any  former  govern- 
ment, and  adopt  a  new  one  in  its  stead."4 

On  the  necessity  of  keeping  alive  the  power  of 
successful  resistance,  William  Tudor  in  an  oration 
delivered  at  Boston,  March  5,  1779,  said  this: 
"Every  day  newr  inroads  are  made  upon  public 

2  Principles  and  Acts  of  the  Revolution,  p.  93. 

3  Principles  and  Acts  of  the  Revolution,  pp.  34-35. 

4  Principles  and  Acts  of  the  Revolution,  p.  47. 

43 


FOREWORD  TO  APPENDIXES 

liberty,  while  encroachments,  like  temptations,  grow 
more  frequent  and  more  dangerous  in  proportion  as 
the  power  of  resistance  decreases."5  Perhaps  that  is 
why  our  modern  masters  are  so  cunningly  and  suc- 
cessfully destroying  the  power  of  resistance  that  they 
even  punish  those  who  talk  about  it.  I  am  simply 
trying  to  persuade  the  masters  and  their  blind 
followers  that  even  from  their  own  point  of  view  they 
would  better  let  the  radicals  talk  as  the  best  means  of 
preventing  radical  action,  but  of  course  they  won't  see 
it.  So  then  the  only  result  of  my  preachments  is  the 
preacher's  joy  of  preaching. 

THEODORE  SCHROEDER. 

•  Principles  and  Acts  of  the  Revolution,  p.  57. 


JAMES  MILL 

James  Mill  (1775-1836)  had  the  misfortune  to 
be  the  parent  of  John  Stuart  Mill,  whose  greater 
fame  has  almost  eclipsed  the  father's  reputation  as 
economist  and  philosopher.  Bentham  said :  "I  was  the 
spiritual  father  of  [James]  Mill,  and  Mill  the  spir- 
itual father  of  Ricardo.  It  was  by  Mill's  encourage- 
ment that  Ricardo  was  induced  to  publish  'Political 
Economy'  and  to  enter  Parliament."  Lewes  records 
to  James  Mill's  credit,  also  this:  "The  first  person 
who  saw  his  [Hobbs']  importance  as  a  political 
thinker  and  had  the  courage  to  proclaim  it  was,  I 
believe,  James  Mill."  Upon  its  appearance,  in 
1818,  his  "History  of  India"  at  once  put  Mill  in  the 
first  rank  among  the  authors  of  his  time.  This  is  a 
"standard  work"  upon  that  subject.  After  this 
Mill  became  a  political  reformer.  He  was  the  warm- 
est disciple  of  Jeremy  Bentham,  as  well  as 
his  close  friend,  neighbor  and  all  but  constant 
companion.  When  old  age  disqualified  Bentham 
from  active  management  of  the  reform  campaign  to 
which  he  had  given  such  conspicuous  impetus,  James 
Mill  became  the  recognized  leader  of  the  Benthamite 
party.  Among  his  warm  friends  he  numbered  such 
men  as  Lords  Brougham  and  Langdale,  also  George 
Grote,  John  and  Charles  Austin,  William  Ellis, 
Walter  Coulson  and  John  Black.  During  the 
crisis  of  the  Reform  Bill,  Mill  was  much  sought  and 
consulted. 

He  was  instrumental  in  starting  the  Edinburgh 
Review,  and  frequently  wrote  for  its  pages.  He  also 
contributed  articles  to  the  Encyclopaedia  Britannica. 
One  of  these  on  "Government"  forcefully  and  con- 
cisely stated  the  progressive  creed  of  the  time,  ac- 
cording to  Benthamite  principles.  This  became  a 
"text-book  for  the  young  men  of  the  Union  at  Cam- 

45 


JAMES  MILL 

bridge,"  and  was  deemed  worthy  of  a  reply  from 
Macauley. 

Another  of  these  essays  written  for  the  Encyclo- 
paedia was  upon  "The  Liberty  of  the  Press."  From 
that  article  the  following  pages  are  extracted.  As 
we  read  their  unanswered  logic,  and  remember  that 
Mill  was  conservative  enough  to  be  a  Monarchist, 
we  are  made  to  feel  that  our  American  progressives 
and  reformers  must  belong  to  the  "libertarians"  of 
the  tenth  century. 

T.  S. 


46 


ON    LIBERTY  OF  THE  PRESS 

FOR  ADVOCATING  RESISTANCE  TO 
GOVERNMENT 

BY  JAMES  MILL 


(  Extracts  from  an  article  in  the  supplement  to  the    Sixth  Edition  of 
the  Encyclopaedia  Britannica,  1821 ) 


pXHORTATIONS  TO  RESIST  ALL  POW- 
DERS OF  GOVERNMENT  AT  ONCE, 
SHOULD  NOT  BE  CONSIDERED  OF- 
FENSES. Unless  a  door  is  left  open  to  resistance 
of  government,  in  the  largest  sense  of  the  word,  the 
doctrine  of  passive  obedience  is  adopted;  and  the 
consequence  is,  the  universal  prevalence  of  misgov- 
ernment  ensnaring  the  misery  and  degradation  of 
the  people.  On  the  other  hand,  unless  the  operations 
of  government,  instituted  for  the  protection  of  rights, 
are  secured  from  obstruction  the  security  of  rights, 
and  all  the  advantages  dependent  upon  the  exist- 
ence of  government,  are  at  an  end.  Between  these 
two  securities,  both  necessary  to  obtain  the  benefits 
of  good  government,  there  appears  to  be  such  a  con- 
trariety that  the  one  can  only  be  obtained  by  the  sac- 
rifice of  the  other.  *  *  * 

The  application  of  physical  force  which  is  treated 
as  an  evil  is  clearly  distinguishable  from  that  re- 
sistance of  government  which  is  the  last  security 
of  the  many  against  the  misconduct  of  the  few.  *  * 
It  is  resistance  to  all  the  powers  of  government  at 

47 


ON  LIBERTY  OF  THE  PRESS 

once,  either  to  withdraw  them  from  the  hands  in 
which  they  have  hitherto  been  deposited,  or  greatly 
to  modify  the  terms  upon  which  they  are  held.  *  * 
We  think  it  may  be  satisfactorily  shown,  that  no 
operation  of  the  press,  however  directly  exhorting  to 
this  species  of  resistance  ought  to  be  treated  as  an 
offense.  . 

The  reason  is,  that  no  such  exhortation  can  have 
any  immediate  or  formidable  effect;  can  indeed,  have 
any  effect  at  all,  except  through  such  a  medium 
as  ought  to  be,  at  all  times  perfectly  free.  Suppose 
that  a  work  is  published,  exhorting  the  people  in  gen- 
eral to  take  arms  against  the  government,  for  the 
puipose  of  altering  it  against  the  consent  of  its  rulers. 
The  people  cannot  take  arms  against  the  Govern- 
ment without  the  certainty  of  being  immediately 
crushed,  unless  there  has  been  already  created  a  gen- 
eral consent.  If  this  consent  exists  in  such  perfec- 
tion as  to  want  nothing  to  begin  action  but  an  ex- 
hortation, nothing  can  prevent  the  exhortation,  and 
forbidding  it  is  useless.  If  the  consent  does  not  ex- 
ist in  nearly  the  last  degree  of  perfection,  a  mere 
exhortation,  read  in  print,  can  have  no  effect  which 
is  worth  regarding.  In  all  circumstances,  there- 
fore it  is  useless  and  consequently  absurd,  to  treat 
this  species  of  exhortation  as  an  offense.  If  on  the 
other  hand  it  were  clearly  recognized,  that  every  man 
had  a  license  to  exhort  the  people  to  a  general  re- 
sistance of  government,  all  such  exhortations  would 
become  ridiculous,  unless  on  those  rare  and  extreme 
occasions  on  which  no  prohibitions,  and  no  penalties 
can  or  ought  to  prevent  them.  *  * 

We  think  it  will  appear,  with  sufficient  evidence, 
that  in  the  way  of  indirect  exhortations  to  resistance 
that  is,  in  laying  the  grounds  of  dissatisfaction  with 
the  government,  there  is  no  medium  between  allowing 
everything,  and  allowing  nothing;  that  the  end,  in 
short,  which  is  sought  to  be  gained,  by  allowing  any- 
thing to  be  published  in  censure  of  the  government, 

48 


ON  LIBERTY  OF  THE  PRESS 

cannot  be  obtained,  without  leaving  it  perfectly  free 
to  publish  everything. 

The.  end  which  is  sought  to  be  obtained,  by  allow- 
ing any  thing  to  be  said  in  censure  of  the  government, 
is,  to  ensure  the  goodness  of  the  government;  the 
most  important  of  all  the  objects,  to  the  attainment 
of  which,  the  wisdom  of  man  can  be  applied.  If 
the  goodness  of  government  could  be  ensured  by  any 
preferable  means,  it  is  evident  that  all  censure  of  the 
government  ought  to  be  prohibited.  All  discontent 
with  the  government  is  only  good,  in  so  far  as  it  is  a 
means  of  removing  real  cause  of  discontent.  If 
there  is  no  cause,  or  if  there  is  better  means  of  re- 
moving the  cause,  the  discontent  is,  of  course,  an  evil 
and  that  which  produces  it  an  evil. 

So  true  it  is,  however,  that  the  discontent  of  the 
people  is  the  only  means  of  removing  the  defects  of 
vicious  governments,  that  the  freedom  of  the  press, 
the  main  instrument  of  creating  discontent,  is,  in  all 
civilized  countries,  among  all  but  the  advocates  of 
misgovernment,  regarded  as  an  indispensable  secu- 
rity, and  the  greatest  safeguard  of  the  interests  of 
mankind. 

For  what  is  meant  by  a  vicious  government?  or 
wherein  do  the  defects  of  government  consist?  Most 
assuredly  they  all  consist  in  sacrificing  the  interests 
of  the  many  to  the  interests  of  the  few.  The  small 
number,  in  whose  hands  the  powers  of  government 
are,  in  part  directly,  in  part  indirectly,  placed,  can- 
not fail,  like  other  men,  to  have  a  greater  regard  for 
what  is  advantageous  to  themselves,  than  what  is 
advantageous  to  other  men.  They  pursue,  there- 
fore, their  own  advantage,  in  preference  to  that  of 
the  rest  of  the  community.  That  is  enough.  Where 
there  is  nothing  to  check  that  propensity,  all  the  evils 
of  misgovernment,  that  is,  in  one  word,  the  worst 
evils  by  which  human  nature  is  afflicted,  are  the  in- 
evitable consequence.  (See  the  article  GOVERN- 
MENT.) 

49 


ON  LIBERTY  OF  THE  PRESS 

There  can  be  no  adequate  check  without  the  free- 
dom of  the  press.  The  evidence  of  this  is  irresistible. 
In  all  countries,  the  people  either  have  a  power 
legally  and  peaceably  of  removing  their  governors, 
or  they  have  not  that  power.  If  they  have  not  that 
power,  they  can  only  obtain  very  considerable  ame- 
liorations of  their  governments  by  resistance,  by  ap- 
plying physical  force  to  their  rulers,  or,  at  least,  by 
threats  so  likely  to  be  followed  by  performance,  as 
may  frighten  their  rulers  into  compliance.  But  re- 
sistance, to  have  this  effect,  must  be  general.  To  be 
general,  it  must  spring  from  a  general  conformity  of 
opinion,  and  a  general  knowledge  of  that  conformity. 
How  is  this  effect  to  be  produced,  but  by  some  means, 
fully  enjoyed  by  the  people,  of  communicating  their 
sentiments  to  one  another?  Unless  where  the  people 
can  all  meet  in  general  assembly,  there  is  no  other 
means,  known  to  the  world,  of  attaining  this  object, 
to  be  compared  with  the  freedom  of  the  press. 

It  is,  no  doubt,  true,  that  in  countries  where  the 
liberty  of  the  press  is  unknown,  evil  governments  are 
frequently  overthrown.  This  is  almost  always  ac- 
complished by  the  military  force,  revenging  some 
grievance  of  their  own,  or  falling  in  with  some  heat 
and  animosity  of  the  people.  But  does  it  ever  enable 
them  to  make  a  new  government,  in  which  any 
greater  security  is  provided  for  their  interests  than 
there  was  before?  In  such  cases,  the  people  get  rid 
of  one  set  of  rulers,  whom  they  hate,  only  to  ob- 
tain another  set,  with  equal  powers  of  doing  them 
injury. 

There  are,  however,  we  believe,  some  people  who 
say,  that  though  the  liberty  of  the  press  is  a  necessary 
instrument  to  attain  good  government,  yet,  if  it  is 
fairly  attained,  and  if  legal  and  peaceable  means  are 
in  the  hands  of  the  people  of  removing  their  govern- 
ors for  misconduct; — if  the  people  of  England,  for 
example,  really  chose  the  members  of  the  House  of 
Commons,  and  renewed  their  choice  so  frequently, 

50 


ON  LIBERTY  OF  THE  PRESS 

as  to  have  the  power  of  removal  after  a  short  ex- 
perience of  misconduct,  the  freedom  of  the  press 
would  be  unnecessary. 

So  far  is  this  from  being  true,  that  it  is  doubtful 
whether  a  power  in  the  people  of  choosing  their  own 
rulers,  without  the  liberty  of  the  press,  would  be  an 
advantage. 

Freedom  of  Censure  on  the  Conduct  of  their  Rulers, 
is  necessary  for  the  good  of  the  People 

It  is  perfectly  clear,  that  all  chance  of  advantage 
to  the  people,  from  having  the  choice  of  their  rulers, 
depends  upon  their  making  a  good  choice.  If  they 
make  a  bad  choice — if  they  elect  people  either  inca- 
pable, or  disinclined,  to  use  well  the  power  entrusted 
to  them,  they  incur  the  same  evils  to  which  they  are 
doomed  when  they  are  deprived  of  the  due  control 
over  those  by  whom  their  affairs  are  administered. 

We  may  then  ask,  if  there  are  any  possible  means 
by  which  the  people  can  make  a  good  choice,  besides 
the  liberty  of  the  press?  The  very  foundation  of  a 
good  choice  is  knowledge.  The  fuller  and  more  per- 
fect the  knowledge,  the  better  the  chance,  where  all, 
sinister  interest  is  absent,  of  a  good  choice.  How 
can  the  people  receive  the  most  perfect  knowledge 
relative  to  the  characters  of  those  who  present  them- 
selves to  their  choice,  but  by  information  conveyed/ 
freely,  and  without  reserve,  from  one  to  another? 

There  is  another  use  of  the  freedom  of  the  press, 
no  less  deserving  the  most  profound  attention,  that 
of  making  known  the  conduct  of  the  individuals  who 
have  been  chosen.  This  latter  service  is  of  so  much 
importance,  that  upon  it  the  whole  value  of  the  for- 
mer depends. 

This  is  capable  of  being  rigidly  demonstrated.  No 
benefit  is  obtained  by  making  choice  of  a  man  who 
is  well  qualified  to  serve  the  people,  and  also  well 
inclined  to  serve  them,  if  you  place  him  in  a  situa- 
tion in  which  he  will  have  preponderant  motives  to 
serve  himself  at  their  expence. 

61 


ON  LIBERTY  OF  THE  PRESS 

If  any  set  of  men  are  chosen  to  wield  the  powers 
of  government,  while  the  people  have  not  the  means 
of  knowing  in  what  manner  they  discharge  their 
duties,  they  will  have  the  means  of  serving  themselves 
at  the  expence  of  the  people;  and  all  the  miseries  of 
evil  government  are  the  certain  consequence. 


Suppose  the  people  to  choose  the  members  of  the 
Legislative  Assembly,  with  power  of  rechoosing, 
or  dismissing  them,  at  short  intervals :  To  what  de- 
sirable end  could  these  powers  be  exercised,  without 
the  liberty  of  the  press?  Suppose  that  any  one  of 
those  whom  they  have  chosen  has  misconducted  him- 
self, or  promoted,  as  far  as  depended  upon  him,  the 
ends  of  misgovernment ;  how  are  the  people  to  know 
that  the  powers  with  which  they  had  entrusted  him 
had  been  treacherously  employed? 

If  they  do  not  know,  they  will  rechoose  him,  and 
that  as  cordially  as  the  man  who  has  served  them  with 
the  greatest  fidelity.  This  they  are  under  a  deplor- 
able necessity  of  doing,  even  to  be  just;  for,  as  they 
know  no  difference  between  him  and  the  best,  it  would 
be  on  their  part  iniquity  to  make  any.  The  conse- 
quences would  be  fatal.  If  one  man  saw  that  he 
might  promote  misrule  for  his  own  advantage,  so 
would  another;  so,  of  course,  would  they  all.  In 
these  circumstances,  we  see  laid  the  foundation  on 
which,  in  every  country,  bad  government  is  reared. 
On  this  foundation  it  is  impossible  that  it  should  not 
be  reared.  When  the  causes  are  the  same,  who  can 
expect  that  the  effects  will  be  different?  It  is  un- 
necessary to  dwell  upon  these  fundamental  truths, 
because  they  have  already  been  developed  in  the 
article  GOVERNMENT. 

^Without  the  knowledge,  then,  of  what  is  done  by 
their  representatives,  in  the  use  of  the  powers  en- 
trusted to  them,  the  people  cannot  profit  by  the 
power  of  choosing  them,  and  the  advantages  of  good 
government  are  unattainable.  It  will  not  surely 
cost  many  words  to  satisfy  all  classes  of  readers 

52 


ON  LIBERTY  OF  THE  PRESS 

that,  without  the  free  and  unrestrained  use  of  the 
press,  the  requisite  knowledge  cannot  be  obtained. 

That  an  accurate  report  of  what  is  done  by  each 
of  the  representatives,  a  transcript  of  his  speeches, 
and  a  statement  of  his  propositions  and  votes,  is 
necessary  to  be  laid  before  the  people,  to  enable 
them  to  judge  of  his  conduct,  nobody,  we  presume, 
will  deny.  This  requires  the  use  of  the  cheapest 
means  of  communication,  and,  we  add,  the  free  use 
of  those  means.  Unless  every  man  has  the  liberty  of 
publishing  the  proceedings  of  the  Legislative  As- 
sembly, the  people  can  have  no  security  that  they  are 
fairly  published.  If  it  is  in  the  power  of  their  rulers 
to  permit  one  person,  and  forbid  another,  the  people 
may  be  sure  that  a  false  report, — a  report  calculated 
to  make  them  believe  that  they  are  well  governed 
when  they  are  ill  governed,  will  be  often  presented  to 
them. 

One  thing  more  is  necessary,  and  so  necessary,  that, 
if  it  is  wanting,  the  other  might  as  well  be  wanting  , 
also.    The  publication  of  the  proceedings  tells  what 
is  done.     This,  however,  is  useless,  unless  a  correct 
judgment  is  passed  upon  what  is  done. 

We  have  brought  this  inquiry,  then,  to  an  im- 
portant point.  In  the  article  GOVERNMENT,  we  have 
seen  that,  unless  the  people  hold  in  their  own  hands 
an  effectual  power  of  control  on  the  acts  of  their 
government,  the  government  will  be  inevitably  vic- 
ious: We  have  now  seen,  that  they  cannot  exercise 
this  control  to  any  beneficial  purpose  without  the 
means  of  forming  a  correct  judgment  upon  the  con- 
duct of  their  representatives :  We  have  likewise  seen, 
that  one  of  the  means  necessary  to  enable  them  to 
judge  correctly  of  the  conduct  of  their  representa- 
tives, is  the  liberty  to  every  body  of  publishing  re- 
ports of  what  they  do.  It  remains  to  inquire,  by  what 
other  acts  the  press  can  be  made  to  contribute  to 
the  same  desirable  end. 

What  is  wanted  is,  that  all  the  people,  or  as  many 

53 


ON  LIBERTY  OF  THE  PRESS 

of  them  as  possible,  should  estimate  correctly  the 
consequences  of  the  acts  proposed  or  done  by  their 
representatives,  and  also  that  they  should  know  what 
acts  might  have  been  proposed,  if  the  best  were  not 
proposed,  from  which  better  consequences  would 
have  followed.  This  end  would  be  accomplished  most 
effectually,  if  those  who  are  sufficiently  enlightened 
would  point  out  to  those  who  are  in  danger  of  mis- 
takes, the  true  conclusions;  and  showing  the  weight 
of  evidence  to  be  in  their  favour,  should  obtain  for 
them  the  universal  assent. 

How  is  this  to  be  accomplished  ?  In  what  manner 
are  those  wise  men  to  be  chosen?  And  who  are  to 
be  the  choosers?  Directly  the  object  cannot  be  at- 
tained. There  are  no  distinct  and  indubitable  marks 
by  which  wisdom,  and  less  by  which  integrity,  is  to 
be  known.  And  who  is  to  be  trusted  with  the  priv- 
ilege of  pointing  them  out?  They  whose  judgment 
requires  to  be  directed  are  not  well  qualified  to  de- 
termine who  shall  direct  them.  And  if  the  rulers  are 
to  choose,  they  will  employ  none  but  those  who  will 
act  in  conformity  to  their  views,  and  enable  them 
to  benefit  themselves  by  the  pillage  and  oppression 
of  the  people. 

As  there  is  no  possible  organ  of  choice,  no  choice 
whatever  ought  to  be  made.  If  no  choice  is  to  be 
made,  every  man  that  pleases  ought  to  be  allowed. 
All  this  is  indubitable.  The  consequences  of  deny- 
ing any  part  of  it  are  so  obvious,  that  hardly  any 
man,  we  suppose,  will  risk  the  imputations  to  which 
such  a  denial  would  justly  expose  him. 

They  who  say  that  no  choice  ought  to  be  made, 

Isay,  in  effect,  that  no  limit  whatsoever  ought  to  be 
^im  posed  upon  the  liberty  of  the  press.  The  one  of 
these  propositions  is  involved  in  the  other.  To  im- 
pose any  restraint  upon  the  liberty  of  the  press,  is 
undoubtedly  to  make  a  choice.  If  the  restraint  is 
imposed  by  the  government,  it  is  the  government 
that  chooses  the  directors  of  the  public  mind.  If 

54 


ON  LIBERTY  OF  THE  PRESS 

any  government  chooses  the  directors  of  the  public 
mind,  that  government  is  despotic. 

Suppose  that,  by  the  restraint  imposed  upon  the 
liberty  of  the  press,  all  censure  of  the  government  is 
forbidden,  here  is  undoubtedly  a  choice.  The  gov- 
ernment, in  this  case,  virtually  says,  The  people  who 
might  attempt  the  task  of  directing  the  public  mind 
are  of  two  sorts;  one  that  of  those  who  would  cen- 
sure: another  that  of  those  who  would  not  censure; 
I  choose  the  latter. 

Suppose  that  not  every  censure,  but  only  such  and 
such  kinds  of  censure,  are  forbidden;  here,  again,  is 
still  a  choice,  while  confessedly  there  is  no  party  to 
whom  the  power  of  choosing  for  the  rest  can  with 
safety  be  given. 

If  not  every  censure,  but  only  some  censures,  are 
to  be  forbidden,  what  are  those  to  which  the  pro- 
hibition should  extend?  The  answer  to  this  question 
will  elucidate  nearly  all  that  yet  remains  in  any 
degree  obscure,  of  the  doctrine  of  the  liberty  of  the 
press. 

It  will  not  be  said  that  any  censure  which  is  just 
should  be  forbidden;  because  that  would  undoubt- 
edly be  to  detract  from  the  means  of  enabling  the 
people  to  form  correct  judgments;  and  we  have,  we 
trust,  rendered  it  indisputable  that  no  source  of  ben- 
efit to  society  is  at  all  to  be  compared  with  that  of 
correct  judgments,  on  their  government  and  its  func- 
tionaries, formed  by  the  people,  and  determining 
their  actions. 

But  what  censures  are  just  and  what  are  unjust; 
in  other  words,  what  are  the  conclusions  which  ought 
to  be  formed  respecting  the  properties  and  the  acts  of  i 
the  government,  is  exactly  the  point  to  be  deter- 
mined. If  you  say  that  no  man  is  to  pass  an  unjust 
censure  upon  the  government,  who  is  to  judge?  It 
is  surely  unnecessary  to  repeat  the  proof  of  the 
proposition,  that  there  is  nobody  who  can  safely  be 
permitted  to  judge.  The  path  of  practical  wisdom 

55 


ON  LIBERTY  OF  THE  PRESS 

is  as  clear  as  day:    All  censures  must  be  permitted, 
equally ;  just,  and  unjust. 

Where  various  conclusions  are  formed  among  a 
number  of  men,  upon  a  subject  on  which  it  would 
/    be  unsafe,  and  therefore  improper,  to  give  any  minor 
portion  of  them  a  power  of  determining  for  the  rest, 
only  one  expedient  remains.     Fortunately,  that  is 
an  expedient,  the  operation  of  which  is  powerful,  and 
its  effects  beneficial  in  the  highest  degree.    All  the 
1  conclusions  which  have    formed   themselves   in   the 
minds  of  different  individuals,  should  be  openly  ad- 
duced; and  the  power  of    comparison    and   choice 
should  be  granted  to  all.    Where  there  is  no  motive 
to  attach  a  man  to  error,  it  is  natural  to  him  to  em- 
brace the  truth ;  especially  if  pains  are  taken  to  adapt 
the  explanation  to  his  capacity.     Every  man,  pos- 
jsessed  of  reason,  is  accustomed  to  weigh  evidence, 
(and  to  be  guided  and  determined  by  its  preponder- 
*  ance.    When  various  conclusions  are,  with  their  evi- 
dence, presented  with  equal  care  and  with  equal  skill, 
there  is  a  moral  certainty,  though  some  few  may  be 
misguided,  that  the  greater  number  will  judge  aright, 
and  that  the  greatest  force  of  evidence,  wherever  it 
is,  will  produce  the  greatest  impression. 

As  this  is  a  proposition  upon  which  every  thing 
depends,  it  is  happy  that  the  evidence  of  it  should  be 
so  very  clear  and  striking.  There  is,  indeed,  hardly 
any  law  of  human  nature  more  generally  recognized, 
wherever  there  is  not  a  motive  to  deny  its  existence. 
"To  the  position  of  Tully,  that  if  Virtue  could  be 
seen,  she  must  be  loved,  may  be  added,"  says  Dr. 
Johnson,  "that  if  Truth  could  be  heard,  she  must  be 
obeyed."  (Rambler,  No.  87) — "Je  vous  plains,  mes 
Peres,"  says  Mons.  Pascal  to  the  Jesuits,  "d'avoir 
recours  a  de  tels  remedes.  Vous  croyez  avoir  la  force 
et  Timpunite:  mais  je  crois  avoir  la  verite,  et  Tinno- 
cence.  C'est  une  etran^e  et  longue  guerre  que  celle 
ou  la  violence  essaie  d'opprimer  la  verite.  Tons 
les  efforts  de  la  violence  ne  peuvent  affoiblir  la  verite, 

56 


ON  LIBERTY  OF  THE  PRESS 

et  ne  servant  qu'a  la  relever  davantage:  toutes  les 
lumieres  de  la  verite  ne  peuvent  rien  pour  arreter  la 
violence,  et  ne  font  que  Firriter  encore  plus.  Quand 
la  force  combat  la  force,  la  plus  puissante  detruit  la 
moindre:  quand  Ton  expose  les  discours  aux  discours, 
ceux  qui  sont  veritables  et  convainquants  confondent 
et  dissipent  ceux  qui  n'ont  que  la  vanite  et  le  men- 
songe"  (Lett.  Provinc.  12.) — "Reason,"  says  Burke, 
"clearly  and  manfully  delivered,  has  in  itself  a  mighty 
force;  but  reason,  in  the  mouth  of  legal  authority,  is, 
one  may  fairly  say,  irresistible."  (Lett,  on  Regicide 
Peace.) 

It  is  of  importance  to  show  how  many  of  the  great- 
est men,  of  all  ages  and  countries,  have  borne  testi- 
mony to  the  prevalence  of  true  over  false  conclusions, 
when  both  are  fairly  offered  to  the  human  mind. 
"Truth,"  says  Mr.  Locke,  "certainly  would  do  well 
enough,  if  she  were  once  left  to  shift  for  herself.  She 
seldom  has  received,  and  I  fear  never  will  receive, 
much  assistance  from  the  power  of  great  men,  to 
whom  she  is  but  rarely  known,  and  more  rarely  wel- 
come. She  is  not  taught  by  law  nor  has  she  any 
need  of  force  to  procure  her  entrance  into  the  minds 
of  men."  (Letter  on  Toleration.)  The  following  is 
the  emphatical  language  of  Montesquieu :  "La  raison 
a  un  empire  naturel ;  elle  a  meme  un  empire  tyranni- 
que:  on  lui  resiste,  mais  cette  resistance  est  son 
triomphe,  encore  un  peu  de  temps,  et  Ton  sera  force 
de  revenir  a  elle."  (Esp.  de  Loix,  1.  28,  ch.  38.  — "It 
is  noted  out  of  Cicero,  by  Machiavel,  that  the  people, 
though  they  are  not  so  prone  to  find  out  truth  of 
themselves,  as  to  follow  custom,  or  run  into  error; 
yet  if  they  be  shown  truth,  they  not  only  acknowl- 
edge and  embrace  it  very  suddenly,  but  are  the  most 
constant  and  faithful  guardians  and  conservators  of 
it."  (Harrington .)— "The  labour  of  a  confutation," 
says  Chillingworth,  "I  have  not  in  any  place  found 
such  labour  or  difficulty,  but  that  it  was  under- 
takeable  by  a  man  of  very  mean  abilities;  and  the 

57 


OA  LIBERTY  OF  THE  PRESS 

reason  is,  because  it  is  Truth  I  plead  for ;  which  is  so 
strong  an  argument  for  itself,  that  it  needs  only  light 
to  discover  it."  (Religion  of  Protestants.) — "About 
things  on  which  the  public  thinks  long,"  says  Dr. 
Johnson,  "it  commonly  attains  to  think  right"  (Life 
of  Addison.)—  "The  adversary,"  says  Dr.  Campbell, 
"is  both  subtile  and  powerful.  With  such  an  adver- 
sary, I  should  on  very  unequal  terms  enter  the  lists, 
had  I  not  the  advantage  of  being  on  the  side  of 
truth.  And  an  eminent  advantage  this  doubtless  is. 
It  requires  but  moderate  abilities  to  speak  in  defence 
of  a  good  cause.  A  good  cause  demands  but  a  dis- 
tinct exposition,  and  a  fair  hearing ;  and  we  may  say, 
with  great  propriety,  it  will  speak  for  itself." 
(Campbell  on  Miracles,  Introd.) 

We  have  then  arrived  at  the  following  important 
conclusions^ — that  there  is  no  safety  to  the  people  in 
allowing  anybody  to  choose  opinions  for  them; 
that  there  are  no  marks  by  which  it  can  be  decided 
beforehand,  what  opinions  are  true  and  what  are 
false;  that  there  must,  therefore,  be  equal  freedom 
of  declaring  all  opinions,  both  true  and  false;  and 
that,  when  all  opinions,  true  and  false,  are  equally  de- 
clared, the  assent  of  the  greater  number,  when  their 
interests  are  not  opposed  to  them,  may  always  be  ex- 
pected to  be  given  to  the  true.  These  principles, 
the  foundation  of  which  appears  to  be  impregnable, 
suffice  for  the  speedy  determination  of  every  prac- 
tical question. 

All  censure  thrown  upon  the  government,  all  cen- 
sure thrown  either  upon  the  institutions  of  the  gov- 
ernment, or  upon  the  conduct  of  any  of  the  func- 
tionaries of  government,  supreme  or  subordinate, 
has  a  tendency  to  produce  resistance  to  the  govern- 
ment. 

Of  the  censures  thrown  upon  government,  some 
may  have  a  tendency  to  produce  resistance  to  the 
operations  of  government  in  detail;  others  that  gen- 

58 


ON  LIBERTY  OF  THE  PRESS 

eral  resistance  which  has  in  view  some  great  altera- 
tion in  the  government. 

Of  the  first  sort  would  be  any  such  accusation  of 
the  conduct  and  disposition  of  a  judge,  as  might 
excite  the  people,  whose  sympathies  were  roused  in 
favour  of  the  individual  against  whom  his  sentence 
was  to  operate,  to  rescue  him  from  the  officers  of 
justice.  We  have  already  shown  that  such  a  rescue 
ought  to  be  punished,  and  any  direct  exhortation  to 
it  ought  to  be  punished.  It  will  now  be  evident,  we 
trust,  that  no  censure  on  the  judge,  though  capable 
of  being  treated  as  an  indirect  exhortation,  ought  to 
be  punished. 

The  reason  is  conclusive.  The  people  ought  to 
know,  if  possible,  the  real  qualities  of  the  actions  of 
those  who  are  entrusted  with  any  share  in  the  man- 
agement of  their  affairs.  This  they  have  no  chance 
of  knowing,  without  the  unlimited  power  of  censure 
upon  those  actions,  both  in  gross  and  detail.  To  see 
the  full  force  of  these  propositions,  it  is  only  neces- 
sary to  apply  the  principles  which  have  been  already 
established. 

If  the  people  have  not  the  means  of  knowing  the 
actions  of  all  public  functionaries,  they  have  no  se- 
curity for  the  good  conduct  even  of  their  represen- 
tatives. Suppose  it  is  the  duty  of  their  representatives 
to  watch  the  conduct  of  the  judges,  and  secure  the 
perfection  of  judicature,  the  people  cannot  know 
whether  their  representatives  perform  this  duty,  un- 
less they  know  what  the  conduct  of  the  judges  is. 
Ignorance  of  this  would  of  itself  suffice  to  vitiate  the 
government.  A  door  would  be  left  open,  through 
which  the  rulers  might  benefit  themselves  at  the  ex- 
pence  of  the  people.  All  the  profit  to  be  made  by 
an  abuse  of  the  power  of  justice,  would  thus  become 
the  profit  of  the  representatives,  by  whom  it  would 
be  allowed,  and  encouraged,  as  far  as  the  knowledge 
which  they  could  not  withhold  from  the  people,  would 
permit. 

59 


ON  LIBERTY  OF  THE  PRESS 

That  the  people  ought,  therefore,  to  know  the  con- 
duct of  their  judges,  and  when  we  say  judges  we 
mean  every  other  functionary,  and  the  more  perfect- 
ly the  better,  may  be  laid  down  as  indubitable.  They 
are  deprived  of  all  trustworthy  means  of  knowing,  if 
any  limit  whatsoever  is  placed  to  the  power  of  cen- 
sure. 

All  censure  consists  in  the  delivery  of  an  unfavor- 
able opinion,  with  or  without  the  grounds  of  it.  This 
is  the  essence  of  censure.  But  if  the  conduct  of  the 
judge  deserves  that  an  unfavorable  opinion  should  be 
entertained  of  it,  the  more  perfectly  that  is  known 
to  the  people,  the  better. 

The  conduct  of  the  judge,  on  this  occasion,  says  a 
defender,  does  not  deserve  an  unfavourable  opinion: 
A  public  expression  of  such  an  opinion  ought,  there- 
fore, to  be  prohibited.  But  there  are  occasions  on 
which  the  conduct  of  judges  deserves  an  unfavour- 
able opinion.  When  it  is  deserved,  there  is  no  se- 
curity for  good  government,  unless  it  is  allowed  to 
be  made  known.  How  can  you  allow  an  unfavour- 
able opinion  to  be  delivered  in  the  one  case,  and  not 
delivered  in  the  other?  To  have  the  benefit  of  it  in 
the  one  case,  you  must  submit  to  the  evil  of  it  in 
the  other. 

In  matters  of  Government,  undeserved  Praise  as 
mischievous  as  undeserved  Blame. 

As  the  real  point  of  importance  is,  to  establish 
correct  opinions  in  the  minds  of  the  people,  it  is  as 
mischievous  to  inculcate  a  favourable  opinion,  when 
an  unfavourable  is  deserved,  as  an  unfavourable 
when  a  favourable  is  deserved;  and,  in  the  eye  of 
reason,  it  is  incontrovertible,  that,  if  the  one  deserves 
to  be  prevented  by  punishment,  so  does  the  other. 

But,  if  an  unfavourable  opinion  is  pronounced 
of  any  public  functionary;  of  a  judge,  for  example, 
would  you  have  it  left  uncontradicted?  Would  you 

60 


ON  LIBERTY  OF  THE  PRESS 

not  grant  the  liberty  of  calling  in  question  the  truth 
of  the  allegations,  and  of  supporting  a  different 
opinion?  If  not,  the  character  of  no  public  func- 
tionary would  be  safe,  and  any  man,  however  de- 
serving, might  be  made  to  appear  the  proper  object 
of  the  most  unfavourable  sentiments.  Why  should 
not  the  two  cases  be  treated  equally?  Why  should 
not  the  favourable,  as  well  as  the  unfavourable 
opinion  be  open  to  contradiction? 

It  is  perfectly  certain,  that  it  is  not  in  the  power 
of  law  to  mark  out,  by  antecedent  definition,  any 
sort  of  men,  of  whom  it  can  say,  all  opinions  favour- 
able to  such  men  shall  be  punished.  It  can  never 
be  affirmed  of  any  men  beforehand  that  they  will 
certainly  perform  such  and  such  injurious  actions. 
If  they  do  perform  them,  all  declarations  conform- 
able with  the  matter  of  fact  are  good.  But  the 
question  is,  whether  they  have  performed  them? 
One  man,  affirms  that  they  have.  Is  that  to  be  taken 
for  granted  ?  And  is  no  man  to  be  allowed  to  affirm 
the  contrary,  and  to  sift  the  grounds  upon  which 
the  allegations  of  the  other  man  are  supported?  It 
is  by  weighing  well  the  evidence  on  both  sides,  that 
a  well-founded  opinion  is  capable  of  being  formed. 
And  it  is  certain,  that  the  best  security  for  having 
the  evidence  on  both  sides  fully  adduced,  and  the 
strength  and  weakness  of  it  perfectly  disclosed,  is 
by  permitting  all  those  who  are  attached  to  differ- 
ent opinions  to  do  what  they  can  for  the  support  of 
them. 

If  it  is  evident  that  it  ought  not  to  be  permitted  to 
speak  evil  of  public  functionaries  without  limit, 
while  any  limit  is  put  to  the  power  of  speaking  well 
of  them;  it  is  equally  evident  that,  for  the  purpose 
of  forming  a  correct  opinion  of  their  conduct,  it 
ought  not  to  be  permitted  to  speak  well  of  them, 
and  oppose  any  limit  whatsoever  to  the  power  of 
speaking  ill  of  them. 

It  ought  not  to  be  permitted  to  speak  evil  of 

61 


ON  LIBERTY  OF  THE  PRESS 

them  without  an  equal  liberty  of  speaking  well;  be- 
cause, in  that  case,  the  evidence  against  them  might 
be  made  to  appear  much  stronger  than  it  was.  It 
ought  not  to  be  permitted  to  speak  well  of  them 
without  an  equal  liberty  of  speaking  ill;  because,  in 
that  case,  the  evidence  in  favour  of  them  might  be 
made  to  appear  much  greater  than  it  really  was.  In 
either  case,  the  people  would  be  misguided,  and  de- 
frauded of  that  moral  knowledge  of  the  conduct  of 
their  rulers,  the  paramount  importance  of  which  has 
so  fully  appeared. 

It  may  be  said  (as  by  the  short-sighted,  if  we  did 
not  anticipate  them,  it  would  be  said),  that  if,  by 
limiting  the  power  of  censure,  the  people  are  made 
to  judge  more  favourably  of  their  rulers  than  they 
deserve,  the  evil  is  small;  but  if  they  are  permitted 
to  form  a  very  unfavourable  opinion,  the  conse- 
quences are  alarming. 

We  believe  it  may  be  rigidly  demonstrated,  that 
no  evils  are  greater  than  those  which  result  from  a 
more  favourable  opinion  of  their  rulers,  on  the  part 
of  the  people,  than  their  rulers  deserve;  because  just 
as  far  as  that  undue  favour  extends,  bad  govern- 
ment is  secured.  By  an  opinion  of  their  rulers  more 
favourable  than  they  deserve,  is  implied  an  igno- 
rance on  the  part  of  the  people  of  certain  acts  of 
their  rulers  by  which  the  people  suffer.  All  acts  by 
which  the  rulers  have  any  motive  to  make  the  people 
suffer,  are  acts  by  which  the  rulers  profit.  When 
the  ignorance  of  the  people  extends  to  material 
points,  all  the  evils  of  bad  government  are  secured. 
These  are  the  greatest  of  all  possible  evils.  To  this 
it  will  not  be  said  that  the  ignorance  of  the  people 
ought  to  extend.  On  all  material  points,  it  is  ad- 
mitted, then,  that  the  freedom  of  censure  ought  to 
be  complete.  But  if  it  is  to  be  allowed  on  great 
points,  on  those  where  it  is  calculated  to  excite  the 
greatest  disapprobation;  what  can  be  thought  of 
their  consistency,  who  would  restrain  it  on  those 

62 


ON  LIBERTY  OF  THE  PRESS 

where  it  is  only  calculated  to  excite  a  small?  If  it 
is  proper  to  protect  the  people  from  great  injuries 
at  the  hands  of  their  rulers,  by  exciting  a  strong,  it 
is  good  to  protect  them  against  small  injuries,  by 
exciting  a  weak  disapprobation. 

To  public  functionaries  may  be  imputed  either 
acts  which  they  have  not  performed,  or  a  want  of 
certain  qualifications,  moral  or  intellectual,  which 
they  possess. 

With  respect  to  acts,  and  even  dispositions,  which 
do  not,  either  directly  or  indirectly,  concern  their 
public  function,  the  same  protection  may  be  safely 
extended  to  them  as  to  private  men. 

Acts  in  their  public  capacity  which  they  have  not 
performed,  may  be  imputed  to  them  either  by  mere 
forgery,  and  without  any  appearance  of  ground,  or 
they  may  be  imputed  with  some  appearance  of 
ground.  From  permitting  the  former,  no  good  can 
be  derived.  They  ought,  therefore,  to  be  prevented, 
in  the  same  way  as  false  imputations,  injurious  to 
individuals  in  their  private  capacity.  That  there 
should  be  no  restraint  in  imputing  actions  to  any 
public  functionary  which  he  may  appear  to  have 
done,  flows  immediately  from  the  principles  already 
established,  and  requires  not  that  any  thing  should 
here  be  added  to  its  proof.  Any  appearance 
sufficient  to  lay  the  foundation  of  the  slightest 
suspicion,  renders  it  useful  to  call  the  attention  of 
the  public  to  the  suspected  part,  which  can  only  be 
done  by  making  the  suspicion  known.  A  man  may 
indeed,  publish,  as  a  matter  of  fact,  what  is  support- 
ed by  appearances  which  would  only  justify  the 
slightest  suspicion.  In  that  case,  he  is  sure  of  in- 
curring the  disgrace  of  temerity,  if  not  of  malignity; 
and  this  is  all  the  penalty  which  needs  or  can  safely 
be  inflicted  upon  him. 

In  imputing  inaptitude  to  a  public  functionary, 
on  the  score  either  of  intellectual  or  moral  qualities, 
scarcely  any  limitation  would  be  safe.  Every  man 

63 


ON  LIBERTY  OF  THE  PRESS 

ought  to  have  liberty  to  declare  upon  this  subject 
any  opinion  which  he  pleases,  and  support  it  by  any 
evidence  which  he  may  think  adapted  to  the  end. 
If,  in  supporting  his  opinion  of  the  inaptitude  of 
any  public  functionary,  he  imputes  to  him  actions 
which  there  is  not  even  an  appearance  of  his  having 
performed,  that  limited  prohibition,  the  propriety 
of  which  we  have  just  recognized,  will  strictly  apply. 
With  this  exception,  freedom  should  be  unimpaired. 

We  have  now,  therefore,  explained,  we  hope  suffi- 
ciently, in  what  manner  the  principles  which  we  have 
established  require,  that  the  use  of  the  press  should 
be  regulated  in  speaking  of  the  action  of 
functionaries,  and  of  their  fitness  for  the  duties 
which  they  are  appointed  to  discharge,  whether  those 
functionaries  are  the  immediate  representatives  of 
the  people,  or  others  whom  it  is  the  business  of  those 
representatives  to  control. 

Freedom  of  Censure  on  the  Institutions  of  Govern- 
ment is  necessary  for  the  good  of  the  People. 

We  have  next  to  inquire  in  what  manner  those 
principles  require  that  the  use  of  the  press  should 
be  regulated  in  speaking  of  the  institutions  of 
government.  The  illustrations  already  adduced  will 
supersede  the  use  of  many  words  upon  this  part  of 
the  subject. 

Institutions  of  government  are  good  in  propor- 
tion as  they  save  the  people  from  evil,  whether  it  be 
evil  created  by  the  government,  or  evil  not  prevented 
by  the  government.  Institutions  of  government  are 
bad  in  proportion  as  they  are  the  cause  of  evil  to  the 
people,  either  by  what  they  create,  or  what  they  fail 
in  preventing. 

According  to  this  statement,  which  it  is  impossible 
to  controvert,  institutions  of  government  may,  in 
strict  propriety  of  speech,  be  said  to  be  the  cause  of 
all  the  evil  which  they  do  not  save  the  people  from, 
and  from  which  the  people  would  be  saved  by  any 
other  institutions. 

64 


ON  LIBERTY  OF  THE  PRESS 

It  is  therefore  of  the  highest  importance  that  the 
people  should  know  what  are  the  institutions  which 
save  from  the  greatest  quantity  of  evil,  and  how 
much  their  own  institutions  want  of  being  those  best 
institutions. 

Institutions  of  government  are  bad,  either  because 
those  in  whose  hands  the  powers  of  government  are 
placed  do  not  know  that  they  are  bad,  and  though 
willing,  cannot  improve  them;  or  they  are  bad,  be- 
cause those  who  have  in  their  hands  the  powers  of 
government  do  not  wish  that  they  should  be  im- 
proved. 

Where  the  rulers  are  willing,  but  do  not  know 
how  to  improve  the  institutions  of  government; 
everything  which  leads  to  a  knowledge  of  their  de- 
fects is  desirable  to  both  rulers  and  people.  That 
which  most  certainly  leads  to  such  knowledge  is, 
that  every  man  who  thinks  he  understands  any  thing 
of  the  subject,  should  produce  his  opinions,  with  the 
evidence  on  which  they  are  supported,  and  that  every 
man  who  disapproves  of  these  opinions  should  state 
his  objections.  All  the  knowledge  which  all  the  in- 
dividuals in  the  society  possess  upon  the  subject  is 
thus  brought,  as  it  were,  to  a  common  stock  or 
treasury;  while  every  thing  which  has  the  appear- 
ance of  being  knowledge,  but  is  only  a  counterfeit 
of  knowledge,  is  assayed  and  rejected.  Every  sub- 
ject has  the  best  chance  of  becoming  thoroughly 
understood,  when,  by  the  delivery  of  all  opinions,  it 
is  presented  in  all  points  of  view,  when  all  the  evi- 
dence upon  both  sides  is  brought  forward,  and  all 
those  who  are  most  interested  in  showing  the  weak- 
ness of  what  is  weak  in  it,  and  the  strength  of  what 
is  strong,  are,  by  the  freedom  of  the  press,  permit- 
ted, and  by  the  warmth  of  discussion  excited,  to  de- 
vote to  it  the  keenest  application  of  their  faculties. 
False  opinions  will  then  be  delivered.  True;  but 
when  are  we  most  secure  against  the  influence  of 
false  opinions?  Most  assuredly  when  the  grounds 

65 


ON  LIBERTY  OF  THE  PRESS 

of  these  opinions  are  the  most  thoroughly  searched. 
When  are  the  grounds  of  opinion  most  thoroughly 
searched?  When  discussion  upon  the  subject  is  the 
most  general  and  the  most  intense ;  when  the  great- 
est number  of  qualified  persons  engage  in  the  dis- 
cussion, and  are  excited  by  all  the  warmth  of  com- 
petition, and  all  the  interest  of  important  conse- 
quences, to  study  the  subject  with  the  deepest  at- 
tention. To  give  a  body  of  rulers,  or  any  other  body 
of  men,  a  power  of  choosing,  for  the  rest,  opinions 
upon  government,  without  discussion,  we  have  al- 
ready seen,  upon  good  evidence,  is  the  way  to  se- 
cure the  prevalence  of  the  most  destructive  errors. 

When  institutions  are  bad,  and  the  rulers  would 
gladly  change  them  if  they  knew  they  were  bad, 
discussion,  it  will  not  be  disputed,  would  be  good 
for  both  parties,  both  rulers  and  ruled.  There  is, 
however,  another  case,  and  that  by  far  the  most 
common,  where  the  rulers  are  attached  to  the  bad 
institutions,  and  are  disposed  to  do  all  in  their  power 
to  prevent  any  alteration.  This  is  the  case  with  all 
institutions  which  leave  it  in  the  power  of  the  men 
who  are  entrusted  with  the  powers  of  government, 
to  make  use  of  them  for  their  own  advantage,  to  the 
detriment  of  the  people;  in  other  words,  which  en- 
able them  to  do  injury  to  the  people,  or  prevent 
the  people  from  good.  This  is  the  case  with  by  far 
the  greater  number  of  those  institutions  by  which 
the  people  suffer.  They  are  institutions  contrived 
for  benefiting  the  few  at  the  cost  of  the  many. 

With  respect,  therefore,  to  the  greater  number  of 
defective  institutions,  it  is  the  interest  of  the  rulers 
that  true  opinions  should  not  prevail.  But  with  re- 
spect to  these  institutions,  it  is  of  still  greater  im- 
portance to  the  people  that  discussion  should  be 
free.  Such  institutions  as  the  rulers  would  improve, 
if  they  knew  that  they  were  defective,  will  be  im- 
proved as  the  rulers  themselves  become  sensible  of 
their  defects.  Such  defective  institutions  as  the 

66 


ON  LIBERTY  OF  THE  PRESS 

rulers  would  not  wish  to  see  improved,  will  never 
be  improved,  unless  the  knowledge  of  these  defects 
is  diffused  among  the  people,  and  excites  among 
them  a  disapprobation  which  the  rulers  do  not  think 
it  prudent  to  disregard. 

That  the  prevalence  of  true  opinions  among  the 
people,  relative  to  those  defects  in  their  political  in- 
stitutions, by  which  the  rulers  profit  at  their  ex- 
pence,  is  of  the  utmost  importance  to  the  people, 
is  therefore  a  proposition,  which  no  improbity  will 
dare  openly  to  controvert.  That  freedom  of  dis- 
cussion is  the  only  security  which  the  people  can 
have  for  the  prevalence  of  true  opinions  has  already 
been  proved.  It  is  therefore  proved,  that  freedom 
of  discussion,  in  its  utmost  perfection,  they  ought 
to  enjoy. 

What  is  included  in  the  term  freedom  of  discus- 
sion, is  evident  from  what  has  already  been  said. 

Freedom  of  discussion  means  the  power  of  pre- 
senting all  opinions  equally,  relative  to  the  subject 
of  discussion;  and  of  recommending  them  by  any 
medium  of  persuasion  which  the  author  may  think 
proper  to  employ.  If  any  obstruction  is  given  to 
the  delivering  of  one  sort  of  opinions,  not  given  to 
the  delivering  of  another;  if  any  advantage  is  at- 
tached to  the  delivering  of  one  sort  of  opinions, 
not  attached  to  the  delivery  of  another;  so  far 
equality  of  treatment  is  destroyed,  and  so  far  the 
freedom  of  discussion  is  infringed;  so  far  truth  is 
not  left  to  the  support  of  her  own  evidence;  and  so 
far,  if  the  advantages  are  attached  to  the  side  of 
error,  truth  is  deprived  of  her  chance  of  prevailing. 

To  attach  advantage  to  the  delivering  of  one  set 
of  opinions,  disadvantage  to  the  delivering  of  an- 
other, is  to  make  a  choice.  But  we  have  already 
seen,  that  it  is  not  safe  for  the  people  to  let  any 
body  choose  opinions  for  them.  If  it  be  said,  that 
the  people  themselves  might  be  the  authors  of  this 
preference,  what  is  this  but  to  say,  that  the  people 

67 


ON  LIBERTY  OF  THE  PRESS 

can  choose  better  before  discussion  than  after;  be- 
fore they  have  obtained  information  than  after  it? 
No,  if  the  people  choose  before  discussion,  before 
information,  they  cannot  choose  for  themselves. 
They  must  follow  blindly  the  impulse  of  certain  in- 
dividuals, who,  therefore,  choose  for  them.  This 
is,  therefore,  a  pretence,  for  the  purpose  of  disguis- 
ing the  truth,  and  cheating  the  people  of  that  choice, 
upon  which  all  their  security  for  good  government 
depends. 

If  these  deductions  are  as  clear  and  incontrover- 
tible as  to  us  they  appear  to  be,  the  inquiry  respect- 
ing the  principles  which  ought  to  regulate  the  use 
of  the  press  is  drawn  pretty  nearly  to  its  close.  We 
have  shown,  that  as  far  as  regards  the  violation  of 
the  rights  of  individuals,  in  respect  to  both  persons 
and  things,  no  definition  on  account  of  the  press  is 
required.  We  have  shown  in  what  manner  the 
rights  of  individuals,  in  regard  to  reputation,  should 
be  defined  by  the  civil  code,  and  the  violation  of 
them  prevented  by  the  penal.  We  next  proceeded 
to  what  may  be  considered  as  the  main  branch  of 
the  inquiry,  namely,  the  use  of  the  press  in  speak- 
ing of  the  institutions  and  functionaries  of  govern- 
ment. We  have  found,  that  in  this  respect  the  free- 
dom of  the  press  is  of  such  importance,  that  there 
is  no  security  for  good  government  without  it.  We 
have  also  found,  that  the  use  of  it,  in  respect  to 
these  subjects,  admits  but  of  two  useful  restrictions; 
—that  of  a  direct  exhortation  to  obstruct  any  of  the 
operations  of  government  in  detail,  and  that  of  im- 
puting to  a  functionary  of  government  a  criminal 
act,  which  there  was  no  ground,  nor  even  any  ap- 
pearance of  ground,  to  impute  to  him.  These  re- 
strictions, of  course,  it  would  be  very  easy  to  define 
in  the  criminal  code,  and  to  find  appropriate  motives 
to  sanction.  In  all  other  respects,  we  have  seen  that 
the  press  ought  to  be  free;  that  if  there  is  any  limit 
to  the  power  of  delivering  unfavourable  opinions, 

68 


ON  LIBERTY  OF  THE  PRESS 

respecting  either  the  functionaries,  or  the  institu- 
tions of  government,  and  of  recommending  those 
opinions  by  any  media,  with  the  single  exception  of 
false  facts,  under  the  circumstances  mentioned 
above,  the  benefits  which  may  be  derived  from  the 
freedom  of  the  press  are  so  greatly  infringed  that 
hardly  any  security  for  good  government  can  re- 
main. 

Limitations  to  Freedom  of  Discussion,  which  in- 
volve its  destruction. 

In  the  administration  of  English  law,  or  rather 
of  what  is  called  law,  upon  this  subject,  without  be- 
ing any  thing  better  than  the  arbitrary  will  of  the 
judges,  it  is  said,  that  though  discusssion  should  be 
free,  it  should  be  "decent;"  and  that  all  "indecency" 
in  discussion  should  be  punished  as  a  libel.  It  is 
not  our  object  in  this  discourse  to  give  an  exposi- 
tion of  the  manifold  deformities  of  the  English  law 
of  libel.  If  we  have  been  successful  in  developing 
the  true  principles  which  ought  to  regulate  the  free- 
dom of  the  press,  every  reader  may,  by  an  applica- 
tion of  those  principles,  determine  what  he  ought  to 
think  of  the  several  particulars  which  there  may  at- 
tract his  attention.  We  shall  confine  ourselves  to 
to  a  short  notice  of  those  dicta,  or  doctrines,  which 
seem  most  likely  to  be  pleaded  in  opposition  to  the 
principles  which  we  have  endeavoured  to  establish. 

The  question  is,  whether  indecent  discussion 
should  be  prohibited?  To  answer  this  question,  we 
must,  of  course,  inquire  what  is  meant  by  indecent. 

In  English  libel  law,  where  this  term  holds  so 
distinguished  a  place,  is  it  not  defined? 

English  legislators  have  not  hitherto  been  good 
at    defining;    and    English    lawyers    have    always 
vehemently  condemned,  and  grossly  abused  it.    The 
word  "indecent,"  therefore,  has  always  been  a  terin\ 
under  which  it  was  not  difficult,  on  each  occasion, 

69 


ON  LIBERTY  OF  THE  PRESS 

for  the  judge  to  include  whatever  he  did  not  like. 
"Decent,"  and  "what  the  judge  likes,"  have  heen 
pretty  nearly  synonymous. 

Indecency  of  discussion  cannot  mean  the  delivery 
either  of  true  or  of  false  opinions,  because  discussion 
implies  both.  In  all  discussion  there  is  supposed  at 
least  two  parties,  one  who  affirms  and  one  who 
denies.  One  of  them  must  be  in  the  wrong. 

The  delivery,  though  not  of  all  true  opinions,  yet 
of  some,  may  be  said  to  be  indecent.  All  opinions 
are  either  favourable  or  unfavourable.  True  opin- 
ions that  are  favourable  to  government  and  its  func- 
tionaries will  not  be  said  to  be  indecent;  nor  will 
all  opinions  that  are  true  and  unfavourable  be 
marked  out  for  prohibition  under  that  name. 
Opinions  unfavourable  may  either  be  greatly  un- 
favourable or  slightly  unfavourable.  If  any  un- 
favourable opinions  are  exempted  from  the  charge 
of  indecency,  it  must  be  those  which  are  slightly  so. 
But  observe  what  would  be  the  consequence  of  pro- 
hibiting, as  indecent,  those  which  are  greatly  un 
favourable.  A  true  opinion,  greatly  unfavourable 
to  a  functionary,  or  institution  of  government,  is 
an  opinion  that  the  functionary,  or  institution,  is 
greatly  hurtful  to  the  people.  You  would  permit 
the  slight  evil  to  be  spoken  of,  and  hence  removed; 
you  would  not  permit  the  great  evil  to  be  spoken 
of. 

If  no  true  opinion  can  be  regarded  as  indecent, 

meaning    by    indecent,    requiring   punishment,    we 

must  inquire  if  any  false  opinion  on  matters  of 

government  ought  to  be  treated  as  such.    If  all  false 

inions  are  indecent,  all  discussion  is  indecent.  All 
false  opinions,  therefore,  are  not  indecent.  The 
English  libel  law  does  not  treat  any  favourable 
opinions,  how  much  soever  false,  as  indecent.  If  all 
opinions  that  are  false  and  unfavourable  are  said 
to  be  indecent,  who  is  to  judge  if  they  are  false?  It 
has  been  already  proved,  that  the  people  can  confide 

70 


ON  LIBERTY  OF  THE  PRESS 

the  power  of  determining  what  opinions  are  true, 
what  are  false  to  none  but  themselves.  Nothing 
can  resist  the  following  argument.  Either  the 
people  do  know,  or  they  do  not  know,  that  an  opin- 
ion is  false:  if  they  do  not  know,  they  can  permit 
nobody  to  judge  for  them,  and  must  leave  discus- 
sion its  free  course:  if  they  do  know,  all  infliction 
of  evil  for  the  delivery  of  an  opinion,  which  then 
can  do  no  harm,  would  be  purely  mischievous  and 
utterly  absurd. 

If  all  opinions,  true  and  false,  must  be  allowed  to 
be  delivered,  so  must  all  the  media  of  proof.  We 
need  not  examine  minutely  the  truth  of  this  infer- 
ence, because  it  will  probably  be  allowed.  It  will 
be  said,  however,  that  though  all  opinions  may  be 
delivered,  and  the  grounds  of  them  stated,  it  must 
be  done  in  calm  and  gentle  language.  Vehement 
expressions,  all  words  and  phrases  calculated  to  in- 
flame, may  justly  be  regarded  as  indecent,  because 
they  have  a  tendency  rather  to  pervert  than  rectify 
the  judgment. 

To  examine  this  proposition,  it  must  be  taken  out 
of  that  state  of  vagueness  in  which  so  many  things 
are  left  by  the  English  law,  and  made,  if  possible, 
to  speak  a  language,  the  meaning  of  which  may  be 
ascertained. 

We  have  just  decided,  and  as  it  appeared,  on  very 
substantial  grounds,  that  the  statement  of  no 
opinion,  favourable  or  unfavourable,  true  or  false, 
with  its  media  of  proof,  ought  to  be  forbidden.  No 
language,  necessary  for  that  purpose,  can  be  inde- 
cent, meaning  here,  as  before,  nothing  by  that  term, 
as  nothing  can  be  meant,  but  simply  punishable,  or 
proper  for  punishment. 

But  the  only  difference  between  delivering  an 
opinion  one  way  and  another  way  is,  that  in  the  one 
case  it  is  simply  delivered,  in  the  other  it  is  delivered 
with  indications  of  passion.  The  meaning  of  the 

71 


ON  LIBERTY  OF  THE  PRESS 

phrase  in  question  then  must  be,  that  an  opinion 
must  not  be  delivered  with  indications  of  passion. 
What!  not  even  a  favourable  one? 

"Oh,  yes!  a  favourable  one.  Merited  praise 
ought  to  be  delivered  with  warmth." 

Here,  then,  is  inequality,  and  therefore  mischief, 
at  once.  An  opinion,  meaning  here  a  true  opinion, 
if  it  is  favourable,  you  allow — if  unfavourable,  you 
do  not  allow — to  be  delivered  in  a  certain  way. 
Why?  Because  in  that  way,  you  say,  it  is  calculated 
•  to  make  an  undue  impression.  Opinions  favourable, 
then,  you  wish  to  make  an  undue  impression,  and 
by  that  confess  the  wickedness  of  your  intention. 
You  desire  that  the  people  should  think  better  of 
the  institutions  and  functionaries  of  their  govern- 
ment than  they  deserve;  in  other  words,  you  wish 
the  government  to  be  bad. 

If  opinions,  to  what  degree  soever  unfavourable, 
may  be  freely  and  fully  delivered,  there  are  two  con- 
clusive reasons  why  the  terms  in  which  they  are  de- 
livered should  not  be  liable  to  punishment.  In  the 
first  place,  the  difference  between  one  mode  of  de- 
livery and  another  is  of  little  consequence.  In  the 
second  place,  you  cannot  forbid  the  delivery  in  one 
set  of  terms,  without  giving  a  power  of  preventing 
it  in  almost  all. 

First,  the  difference  is  of  little  consequence.  If 
I  say  barely  that  such  a  functionary  of  government, 
or  such  an  institution  of  government,  is  the  cause 
of  great  injury  and  suffering  to  the  people,  all  that 
I  can  do  more  by  any  language  is,  to  give  intima- 
tion, that  the  conduct  of  such  functionary,  or  the  ex- 
istence of  such  institution,  excites  in  me  great  con- 
tempt, or  great  anger,  or  great  hatred,  and  ought 
to  excite  them  in  others.  But  if  I  put  this  in  the 
way  of  a  direct  proposition,  I  may  do  so,  because 
then  it  will  be  a  naked  statement  with  regard  to  a 
matter  of  fact,  and  cannot  be  forbidden,  without 

72 


ON  LIBERTY  OF  THE  PRESS 

overthrowing  the  whole  of  the  doctrine  which  we 
have  already  established. 

If,  then,  I  give  indication  of  certain  sentiments  of 
mine,  and  of  my  opinion  of  what  ought  to  be  the 
sentiments  of  others  explicitly  f  I  ought,  you  say, 
to  be  held  innocent ;  if  implicitly,  guilty.  Implicity,  • 
or  explicity,  that  is  the  difference,  and  the  whole 
of  the  difference.  If  I  say,  that  such  a  judge,  on 
such  an  occasion,  took  a  bribe,  and  pronounced  an 
unjust  decision,  which  ruined  a  meritorious  man  and 
his  family,  this  is  a  simple  declaration  of  opinion, 
and  ought  not,  according  to  the  doctrine  already 
established,  to  meet  with  the  smallest  obstruction. 
If  I  also  state  the  matter  of  fact  with  regard  to  my- 
self, that  this  action  has  excited  in  me  great  com- 
passion for  the  injured  family,  and  great  anger  and 
hatred  against  the  author  of  their  wrongs,  this  must 
be  fully  allowed.  I  must  further  be  allowed  to  ex- 
press freely  my  opinion,  that  this  action  ought  to 
excite  similar  sentiments  in  other  members  of  the 
community,  and  that  the  judge  ought  to  receive  an 
appropriate  punishment.  Much  of  all  this,  however, 
I  may  say  in  another  manner.  I  may  say  it  much 
more  shortly  by  implication. — Here,  I  may  cry,  is 
an  act  for  the  indignation  of  mankind  1  Here  is  a 
villain,  who,  invested  with  the  most  sacred  of  trusts, 
has  prostituted  it  to  the  vilest  of  purposes!  Why  is 
he  not  an  object  of  public  execration?  Why  are 
not  the  vials  of  wrath  already  poured  forth  upon  his 
odious  head? — All  this  means  nothing,  but  that  he 
has  committed  the  act;  that  I  hate  him  for  it,  and 
commiserate  the  sufferers;  that  I  think  he  ought  to 
be  punished ;  and  that  other  people  ought  to  feel  as 
I  do.  It  cannot  be  pretended,  that  between  these 
two  modes  of  expression,  the  difference,  in  point  of 
real  and  ultimate  effect,  can  be  considerable.  For  a 
momentary  warmth,  the  passionate  language  may 
have  considerable  power.  The  permanent  opinion 
formed  of  the  character  of  the  man,  as  well  as  the 

73 


ON  LIBERTY  OF  THE  PRESS 

punishment,  which,  under  a  tolerable  administration 
of  law,  he  can  sustain,  must  depend  wholly  upon  the 
real  state  of  the  facts;  any  peculiarity  in  the 
language  in  which  the  facts  may  have  been  origi- 
nally announced  soon  loses  its  effect.  If  that 
language  has  expressed  no  more  indignation  than 
what  was  really  due,  it  has  done  nothing  more  than 
what  the  knowledge  of  the  facts  themselves  would 
have  done.  If  it  has  expressed  more  indignation 
than  what  was  due,  the  knowledge  of  the  facts  oper- 
ates immediately  to  extinguish  it,  and,  what  is  more, 
to  excite  an  unfavourable  opinion  of  him  who  had 
thus  displayed  his  intemperance.  No  evil  then  is 
produced;  or  none  but  what  is  very  slight  and  mo- 
mentary. If  there  should  be  a  short-lived  excess 
of  unfavourable  feeling,  we  have  next  to  consider 
what  is  the  proper  remedy.  Punishment  should 
never  be  applied,  where  the  end  can  be  attained  by 
more  desirable  means.  To  destroy  any  excess  of 
unfavourable  feeling,  all  that  is  necessary  is,  to  show 
the  precise  state  of  the  facts,  and  the  real  amount  of 
the  evil  which  they  import.  All  excess  of  feeling 
arises  from  imputing  to  the  facts  a  greater  efficacy 
in  the  way  of  evil  than  belongs  to  them.  Correct 
this  opinion,  and  the  remedy  is  complete. 

Secondly,  you  cannot  forbid  the  use  of  passionate 
language,  without  giving  a  power  of  obstructing 
the  use  of  censorial  language  altogether.  The  rea- 
son exists  in  the  very  nature  of  language.  You 
•cannot  speak  of  moral  acts  in  language  which  does 
not  imply  approbation  and  disapprobation.  All 
such  language  may  be  termed  passionate  language. 
How  can  you  point  out  a  line  where  passionate 
language  begins,  dispassionate  ends?  The  effect  of 
words  upon  the  mind  depends  upon  the  associations 
which  we  have  with  them.  But  no  two  men  have 
the  same  associations  with  the  same  words.  A  word 
which  may  excite  strains  of  emotion  in  one  breast, 
will  excite  none  in  another.  A  word  may  appear 

74 


ON  LIBERTY  OF  THE  PRESS 

to  one  man  a  passionate  word,  which  does  not  ap- 
pear so  to  another.  Suppose  the  legislature  were 
to  say,  that  all  censure,  conveyed  in  passionate 
language,  shall  be  punished,  hardly  could  the  vices 
of  either  the  functionaries  or  the  institutions  of 
government  be  spoken  of  in  any  language  which 
the  judges  might  not  condemn  as  passionate 
language,  and  which  they  would  not  have  an  inter- 
est, in  league  with  other  functionaries,  to  prohibit 
by  their  condemnation.  The  evil,  therefore,  which 
must  of  necessity  be  incurred  by  a  power  to  punish 
language  to  which  the  name  of  passionate  could  be 
applied,  would  be  immense.  The  evil  which  is  in- 
curred by  leaving  it  exempt  from  punishment  is  too 
insignificant  to  allow  that  almost  anything  should 
be  risked  for  preventing  it. 

Religion,  in  some  of  its  shapes,  has,  in  most 
countries,  been  placed  on  the  footing  of  an  institu- 
tion of  the  state.  Ought  the  freedom  of  the  press 
to  be  as  complete,  in  regard  to  this,  as  we  have  seen 
that  it  ought  to  be,  in  regard  to  all  other  institutions 
of  the  state?  If  any  one  says  that  it  ought  not,  it 
is  incumbent  upon  him  to  show  wherein  the  prin- 
ciples, which  are  applicable  to  the  other  institutions, 
fail  in  their  application  to  this. 

We  have  seen,  that,  in  regard  to  all  other  insti- 
tutions, it  is  unsafe  for  the  people  to  permit  any  but 
themselves  to  choose  opinions  for  them.  Nothing 
can  be  more  certain,  than  that  it  is  unsafe  for  them 
to  permit  any  but  themselves  to  choose  for  them  in 
religion. 

If  they  part  with  the  power  of  choosing  their  own 
religious  opinions,  they  part  with  every  power.  It 
is  well  known  with  what  ease  religious  opinions  can 
be  made  to  embrace  everything  upon  which  the  un- 
limited power  of  rulers,  and  the  utmost  degradation 
of  the  people,  depend.  The  doctrine  of  passive  obe- 
dience and  non-resistance  was  a  religious  doctrine. 
Permit  any  man,  or  any  set  of  men,  to  say  what 

75 


ON  LIBERTY  OF  THE  PRESS 

shall,  and  what  shall  not,  be  religious  opinions,  you 
make  them  despotic  immediately. 

This  is  so  obvious,  that  it  requires  neither  illustra- 
tion nor  proof. 

But  if  the  people  here,  too,  must  choose  opinions 
for  themselves,  discussion  must  have  its  course;  the 
same  propositions  which  we  have  proved  to  be  true 
in  regard  to  other  institutions,  are  true  in  regard 
to  this;  and  no  opinion  ought  to  be  impeded  more 
than  another,  by  any  thing  but  the  adduction  of 
evidence  on  the  opposite  side. 


76 


JOHN  LOUIS  DELOLME  (1740-1807) 

De  Lolme  was  born  at  Geneva  and  in  his  youth 
was  a  practising  lawyer.  He  came  to  England  in 
1769,  and  set  himself  to  the  study  of  its  government, 
being  led  thereto  by  his  experience  of  political 
troubles  in  Switzerland.  He  began  writing  after 
being  about  one  year  in  England,  and  his  book  "The 
Constitution  of  England"  written  in  French,  was 
first  published  in  Holland  within  the  next  year,  one 
author  says  in  1773.  A  translation  was  published  in 
England  in  1775.  It  is  curious  that  the  preface  to 
the  "Letters  of  Junius"  written  as  early  as  Novem- 
ber 1771,  concludes  with  a  quotation  from  De 
Lolme's  work,  which  it  describes  as  "a  performance, 
deep,  solid,  and  ingenius."  This  fact  led  to  the  con- 
jecture that  De  Lolme  and  Junius  were  the  same 
person.  Alibone's  "Dictionary  of  Authors,"  men- 
tions nine  editions  of  this  valuable  book,  and  con- 
cludes the  brief  notice  with  these  words.  "De  Lolme 
has  been  blamed  for  too  excessive  and  general  ad- 
miration of  the  Constitution  of  England ;  but  this  is 
a  point  we  think,  in  which  exaggeration  is  not  easy. 
The  merits  of  this  work,  are  unquestionable.  Lords 
Chatham  and  Camden  commend  it  highly."  De 
Lolme  was  called  by  D 'Israeli  "the  English  Montes- 
quieu." Bentham  comparing  him  with  Blackstone 
says:  "Our  author  has  copied,  but  De  Lolme  has 
thought." 


77 


RIGHT  OF  RESISTANCE 

BY  J.  L.  DELOLME 

But  all  those  privileges  of  the  people,  considered 
in  themselves,  are  but  feeble  defences  against  the  real 
strength  of  those  who  govern.  All  those  provisions, 
all  those  reciprocal  rights,  necessarily  suppose  that 
things  remain  in  their  legal  and  settled  course :  what 
would  then  be  the  resource  of  the  people,  if  ever  the 
prince,  suddenly  freeing  himself  from  all  restraint, 
and  throwing  himself,  as  it  were,  out  of  the  constitu- 
tion, should  no  longer  respect  either  the  person  or  the 
property  of  the  subject,  and  either  should  make  no 
account  of  his  conventions  with  the  Parliament,  or 
attempt  to  force  it  implicitly  to  submit  to  his  will  ? — 
It  would  be  resistance.1  Without  entering  here  into 
the  discussion  of  a  doctrine  which  would  lead  us  to 
inquire  into  the  first  principles  of  civil  government, 
consequently  engage  us  in  a  long  disquisition,  and 
with  regard  to  which,  besides,  persons  free  from  prej- 
udices agree  pretty  much  in  their  opinions,  I  shall 
only  observe  here  (and  it  will  be  sufficient  for  my 
purpose)  that  the  question  has  been  decided  in  favour 
of  this  doctrine  by  the  laws  of  England,  and  that  re- 

(a)  It  is  to  resistance  to  tyranny  and  injustice  that  we  owe  the  pres- 
ervation of  our  common  laws,  and  all  the  statutes  which  secure  our 
civil,  political,  and  religious  liberties.  Those  rights  can  never  be 
termed  concessions  from  the  Crown;  they  were  mere  acts  by  which 
the  sovereign  entered  into  new  contracts,  and  by  which  he  bound 
himself  not  to  invade  the  natural  and  legal  liberties  of  his  subjects. 
It  was  by  resistance  that  King  John  was  compelled  to  sign  Magna 
Charta;  and  it  was  by  resistance  that  subsequent  kings  were  not  only 
obliged  to  confirm  that  charter,  but  to  enter  into  fresh  contracts  bind- 
ing them  not  to  exercise  tyrannical  assumptions.  It  was  resistance 
that  gave  us  the  Petition  of  Right,  the  Habeas  Corpus  Act,  the  Bill 
of  Rights,  the  Reform  Act  (a),  and  Free  Trade.  But  when  laws  are 
constitutionally  passed,  no  people  are  so  remarkable  as  the  subjects 
of  Great  Britain  for  implicitly  obeying  those  laws.  By  resistance  we 
do  not  mean  direct  opposition  to  the  laws,  but  the  moral  weight  of 
public  opinion,  as  expressed  out  of  doors  and  in  Parliament,  against 
bad  and  pernicious  laws,  or  the  measures  of  an  unjust  ministry,  or 
against  the  Crown  itself  if  it  should  attempt  an  undue  or  severe  ex- 
ercise of  prerogative. — Ed. 

78 


RIGHT  OF  RESISTANCE 

sistance  is  looked  upon  by  them  as  the  ultimate  and 
lawful  resource  against  the  violences  of  power. 

It  was  resistance  that  gave  birth  to  the  Great 
Charter,  that  lasting  foundation  of  English  liberty, 
and  the  excesses  of  a  power  established  by  force  were 
also  restrained  by  force.2  It  has  been  by  the  same 
means  that,  at  different  times,  the  people  have  pro- 
cured the  confirmation  of  the  same  charter.  Lastly, 
it  has  also  been  the  resistance  to  a  king  who  made  no 
account  of  his  own  engagements  that  has,  in  the  is- 
sue, placed  on  the  throne  the  family  which  is  now  in 
possession  of  it.3 

(*)  Lord  Lyttleton  says,  extremely  well,  in  his  Persian  Letters, — 
"If  the  privileges  of  the  people  of  England  be  concessions  from  the 
Crown,  is  not  the  power  of  the  Crown  itself  a  concession  from  the 
people?"  It  might  be  said  with  equal  truth,  and  somewhat  more  in 
point  to  the  subject  of  this  chapter, — If  the  privileges  of  the  people 
be  an  encroachment  on  the  power  of  kings,  the  power  itself  of  kings 
was  at  first  an  encroachment  (no  matter  whether  effected  by  sur- 
prise) on  the  natural  liberty  of  the  people. 

(')  The  Senate  had  procured  a  seal  to  be  made,  to  be  affixed  to  their 
official  resolution,  in  case  the  King  should  refuse  to  lend  his  own. 
The  reader  will  find  more  particulars  concerning  the  former  govern- 
ment of  Sweden  in  the  nineteenth  chapter. 

Regulations  of  a  similar  nature  had  been  made  in  Denmark,  and 
continued  to  subsist,  with  some  variations,  till  the  revolution  which 
in  the  seventeenth  century,  placed  the  whole  power  of  the  state  in 
the  hands  of  the  Crown,  without  control.  The  different  kingdoms  in- 
to which  Spain  was  formerly  divided  were  governed  in  much  the 
same  manner. 

And  in  Scotland,  that  seat  of  anarchy  and  aristocratical  feuds,  the 
great  offices  in  the  state  were  not  only  taken  from  the  Crown,  but 
they  were  moreover  made  hereditary  in  the  principal  families  of  the 
body  of  nobles:  such  were  the  offices  of  high  admiral,  high  steward, 
high  constable,  great  chamberlain,  and  justice-general:  this  last  office 
implied  powers  analogous  to  those  of  the  Chancellor  and  the  Chief 
Justice  of  the  King's  Bench,  united. 

The  King's  minority,  or  personal  weakness,  or,  in  general,  the  dif- 
ficulties in  which  the  state  might  be  involved,  were  circumstances  of 
which  the  Scotch  leaders  never  failed  to  avail  themselves  for  invading 
the  governing  authority.  A  remarkable  instance  of  the  claims  which 
they  used  to  set  forth  on  those  occasions,  occurs  in  a  bill  that  was 
framed  in  the  year  1703,  for  settling  the  succession  to  the  Crown,  after 
the  demise  of  the  Queen,  under  the  title  of  An  Act  for  the  Security 
of  the  Kingdom. 

The  Scotch  Parliament  was  to  sit  by  its  own  authority  every  year, 
on  the  first  day  of  November,  and  adjourn  itself  as  it  should  think 
proper. 

The  King  was  to  give  his  assent  to  all  laws  agreed  to,  and  offered  by, 
the  estates;  or  commission  proper  officers  for  doing  the  same. 

A  committee  of  one-and-thirty  members,  chosen  by  the  Parliament 

79 


RIGHT  OF  RESISTANCE 

This  is  not  all:  this  resource,  which  till  then  had 
only  been  an  act  of  force  opposed  to  other  acts  of 
force,  was,  at  that  aera,  expressly  recognized  by  the 
law  itself.  The  Lords  and  Commons,  solemnly  as- 
sembled, declared  that  "King  James  the  Second,  hav- 
ing endeavoured  to  subvert  the  constitution  of  the 
kingdom,  by  breaking  the  original  contract  between 
king  and  people,  and  having  violated  the  fundamen- 
tal laws,  and  withdrawn  himself,  had  abdicated  the 
government,  and  that  the  throne  was  thereby  va- 
cant."4 

And  lest  those  principles,  to  which  the  revolution 
thus  gave  a  sanction,  should,  in  process  of  time  be- 
come mere  arcana  of  state,  exclusively  appropriated, 
and  only  known  to  a  certain  class  of  subjects,  the 
same  act,  we  have  just  mentioned,  expressly  ensured 
to  individuals  the  right  of  publicly  preferring  com- 
plaints against  the  abuses  of  government,  and,  more- 
over, of  being  provided  with  arms  for  their  own  de- 
fence. Judge  Blackstone  expresses  himself  in  the 
following  terms,  in  his  Commentaries  on  the  Laws  of 
England: — "To  vindicate  these  rights,  when  actually 
violated  or  attacked,  the  subjects  of  England  are  en- 
titled, in  the  first  place,  to  the  regular  administration 
and  free  course  of  justice  in  the  courts  of  law;  next, 
to  the  right  of  petitioning  the  King  and  Parliament 
for  redress  of  grievances ;  and,  lastly,  to  the  right  of 
having  and  using  arms  for  self-preservation  and  de- 
fence." 

Lastly,  this  right  of  opposing  violence,  in  what- 
ever shape,  and  from  whatever  quarter  it  may  come, 
is  so  generally  acknowledged,  that  the  courts  of  law 
have  sometimes  grounded  their  judgments  upon  it. 

were  to  he  called  the  King's  Council,  and  govern  during  the  recess, 
being  accountable  to   the  Parliament. 

The  King  was  not  to  make  any  foreign  treaty  without  the  consent 
of  Parliament. 

All  places  and  offices,  both  civil  and  military,  and  all  pensions  form- 
erly given  by  the  King,  were  ever  after  to  be  given  by  Parliament. 

See   Parliamentary  Debates,  A.  1703. 

(*)  The  Bill  of  Rights  has  since  given  a  new  sanction  to  all  these 
principles. 

80 


RIGHT  OF  RESISTANCE 

I  shall  relate  on  this  head  a  fact  which  is  somewhat 
remarkable. 

A  constable,  being  out  of  his  precinct,  arrested  a 
woman  whose  name  was  Anne  Dekins;  one  Tooly 
took  her  part,  and,  in  the  heat  of  the  fray,  killed  the 
assistant  of  the  constable. 

Being  prosecuted  for  murder,  he  alleged,  in  his 
defence,  that  the  illegality  of  the  imprisonment  was 
sufficient  provocation  to  make  the  homicide  excusa- 
ble, and  entitle  him  to  the  benefit  of  clergy.  The 
jury,  having  settled  the  matter  of  fact,  left  the  crim- 
inality of  it  to  be  decided  by  the  judge,  by  returning 
a  special  verdict.  The  cause  was  adjourned  to  the 
Queen's  Bench,  and  thence  again  to  Serjeant's  Inn, 
for  the  opinion  of  the  twelve  judges.  Here  follows 
the  opinion  delivered  by  Chief  Justice  Holt,  in  giv- 
ing judgment  :- 

"If  one  be  imprisoned  upon  an  unlawful  authori- 
ty, it  is  a  sufficient  provocation  to  all  people,  out  of 
compassion,  much  more  so  when  it  is  done  under  col- 
our of  justice;  and  when  the  liberty  of  the  subject  is 
invaded,  it  is  a  provocation  to  all  the  subjects  of  Eng- 
land. A  man  ought  to  be  concerned  for  Magna 
Charta  and  the  laws ;  and  if  any  one  against  law  im- 
prison a  man,  he  is  an  offender  against  Magna 
Charta."  After  some  debate,  occasioned  chiefly  by 
Tooly's  appearing  not  to  have  known  that  the  consta- 
ble was  out  of  his  precinct,  seven  of  the  judges  were 
of  opinion  that  the  prisoner  was  guilty  of  manslaugh- 
ter, and  he  was  admitted  to  the  benefit  of  clergy.5 

But  it  is  with  respect  to  this  right  of  an  ultimate 
resistance  that  the  advantage  of  a  free  press  appears 
in  a  most  conspicuous  light.  As  the  most  important 
rights  of  the  people,  without  the  prospect  of  a  resis- 
tance which  overawes  those  who  should  attempt  to 
violate  them,  are  little  more  than  mere  shadows,  so 
this  right  of  resisting,  itself,  is  but  vain  when  there  ex- 

(*)  Sec  Reports  of  Cases  argued,  debated,  and  adjudged,  in  Banco 
Reginae,  in  the  time  of  Queen  Anne. 

81 


RIGHT  OF  RESISTANCE 

ist  no  means  of  effecting  a  general  union  between  the 
different  parts  of  the  people. 

Private  individuals,  unknown  to  each  other,  are 
forced  to  bear  in  silence  injuries  in  which  they  do  not 
see  other  people  take  a  concern.  Left  to  their  own 
individual  strength,  they  tremble  before  the  formid- 
able and  ever  ready  power  of  those  who  govern;  and 
as  the  latter  well  know  (and  are  even  apt  to  over- 
rate) the  advantages  of  their  own  situation,  they 
think  that  they  may  venture  upon  anything. 

But  when  they  see  that  all  their  actions  are  ex- 
posed to  public  view, — that,  in  consequence  of  the 
celerity  with  which  all  things  become  communicated, 
the  whole  nation  forms,  as  it  were,  one  continued  ir- 
ritable body,  no  part  of  which  can  be  touched  with- 
out exciting  an  universal  tremor, — they  become  sensi- 
ble that  the  cause  of  each  individual  is  really  the  cause 
of  all,  and  that  to  attack  the  lowest  among  the  people 
is  to  attack  the  whole  people. 

Here,  also,  we  must  remark  the  error  of  those  who, 
as  they  make  the  liberty  of  the  people  consist  in  their 
power,  so  make  their  power  consist  in  their  action. 

When  the  people  are  often  called  to  act  in  their 
own  persons,  it  is  impossible  for  them  to  acquire  any 
exact  knowledge  of  the  state  of  things.  The  event  of 
one  day  effaces  the  notions  which  they  had  begun  to 
adopt  on  the  preceding  day ;  and  amidst  the  continu- 
al change  of  things,  no  settled  principle,  and,  above 
all,  no  plans  of  union,  have  time  to  be  established 
among  them.  You  wish  to  have  the  people  love  and 
defend  their  laws  and  liberty, — leave  them,  there- 
fore, the  necessary  time  to  know  what  laws  and  liber- 
ty are,  and  to  agree  in  their  opinion  concerning  them. 
You  wish  an  union,  a  coalition,  which  cannot  be  ob- 
tained but  by  a  slow  and  peaceable  process, — forbear, 
therefore,  continually  to  shake  the  vessel. 

Nay,  farther,  it  is  a  contradiction  that  the  people 
should  act,  and  at  the  same  time  retain  any  legal 
power.  Have  they,  for  instance,  been  forced  by  the 

82 


RIGHT  OF  RESISTANCE 

weight  of  public  oppression  to  throw  off  the  restraints 
of  the  law,  from  which  they  no  longer  received  pro- 
tection?— They  presently  find  themselves  suddenly 
become  subject  to  the  command  of  a  few  leaders,  who 
are  the  more  absolute  in  proportion  as  the  nature  of 
their  power  is  less  clearly  ascertained;  nay,  perhaps 
they  must  even  submit  to  the  toils  of  war,  and  to  mili- 
tary discipline. 

If  it  can  be  in  the  common  and  legal  course  of 
things  that  the  people  are  called  to  move,  each  indi- 
vidual is  obliged,  for  the  success  of  the  measures  in 
which  he  is  then  made  to  take  a  concern,  to  join  him- 
self to  some  party;  nor  can  this  party  be  without 
head.  The  citizens  thus  grow  divided  among  them- 
selves, and  contract  the  pernicious  habit  of  submit- 
ting to  leaders.  They  are,  at  length,  no  more  than 
the  clients  of  a  certain  number  of  patrons ;  and  the 
latter,  soon  becoming  able  to  command  the  arms  of 
the  citizens  in  the  same  manner  as  they  at  first  gov- 
erned their  votes,  make  little  account  of  a  people, 
with  one  part  of  which  they  know  how  to  curb  the 
other. 

But  when  the  moving  springs  of  government  are 
placed  entirely  out  of  the  body  of  the  people,  their  ac- 
tion is  thereby  disengaged  from  all  that  could  render 
it  complicated,  or  hide  it  from  the  eye.  As  the  peo- 
ple thenceforward  consider  things  speculatively,  and 
are,  if  I  may  be  allowed  the  expression,  only  specta- 
tors of  the  game,  they  acquire  just  notions  of  things; 
and  as  these  notions,  amidst  the  general  quiet,  gain 
ground  and  spread  themselves  far  and  wide,  they  at 
length  entertain,  on  the  subject  of  their  liberty,  but 
one  opinion. 

Forming  thus,  as  it  were,  one  body,  the  people  at 
every  instant  have  it  in  their  power  to  strike  the  de- 
cisive blow  which  is  to  level  everything.  Like  those 
mechanical  powers,  the  greatest  efficiency  of  which 
exists  at  the  instant  which  precedes  their  entering  in- 
to action,  it  has  an  immense  force,  just  because  it 

83 


RIGHT  OF  RESISTANCE 

does  not  yet  exert  any :  and  in  this  state  of  stillness, 
but  of  attention,  consists  its  true  momentum. 

With  regard  to  those  who  (whether  from  personal 
privileges,  or  by  virtue  of  a  commission  from  the  peo- 
ple) are  intrusted  with  the  active  part  of  government, 
as  they,  in  the  meanwhile,  see  themselves  exposed  to 
public  view,  and  observed  as  from  a  distance  by  men 
free  from  the  spirit  of  party,  and  who  place  in  them 
but  a  conditional  trust,  they  are  afraid  of  exciting  a 
commotion,  which,  though  it  might  not  prove  the  de- 
struction of  all  power,  yet  would  surely  and  immedi- 
ately be  the  destruction  of  their  own.  And  if  we 
might  suppose  that,  through  an  extraordinary  con- 
junction of  circumstances,  they  should  resolve  among 
themselves  upon  the  sacrifice  of  those  laws  on  which 
public  liberty  is  founded,  they  would  no  sooner  lift 
up  their  eyes  towards  that  extensive  assembly,  which 
views  them  with  a  watchful  attention,  than  they  would 
find  their  public  virtue  return  upon  them,  and  would 
make  haste  to  resume  that  plan  of  conduct,  out  of 
the  limits  of  which  they  can  expect  nothing  but  ruin 
and  perdition. 

In  short,  as  the  body  of  the  people  cannot  act  with- 
out either  subjecting  themselves  to  some  power,  or  ef- 
fecting a  general  destruction,  the  only  share  they  can 
have  in  a  government,  with  advantage  to  themselves, 
is  not  to  interfere,  but  to  influence — to  be  able  to  act, 
and  not  to  act. 

The  power  of  the  people  is  not  when  they  strike, 
but  when  they  keep  in  awe :  it  is  when  they  can  over- 
throw everything,  that  they  never  need  to  move;  and 
Manlius  included  all  in  four  words,  when  he  said  to 
the  people  of  Rome, — Ostendite  bellum,  pacem  ha- 
bebiti*. 


84 


JOHN  CARTWRIGHT  (1740-1824) 
At  the  age  of  18  Cartwright  entered  England's 
navy  and  had  some  active  service  under  Lord  Howe. 
Having  inventive  genius,  he  rose  rapidly  in  the  serv- 
ice. In  1766  he  was  appointed  first  lieutenant  of  the 
Guernsey,  on  the  Newfoundland  station,  and  the 
following  year  was  made  deputy  commissioner  to  the 
vice-admiralty  court  in  the  island.  Two  years  later 
Lord  Howe  offered  Cartwright  a  first  lieutenancy 
with  an  invitation  to  join  the  forces  against  America. 
Cartwright's  sympathy  for  the  American  cause  pre- 
cluded him  from  accepting,  and  thus  was  terminated 
his  professional  advance.  In  1775  he  had  been  ap- 
pointed Major  of  the  Nottinghamshire  Militia.  In 
the  same  year  he  began  publicly  asserting  himself  by 
entering  upon  a  public  controversy  with  Burke  upon 
the  American  situation,  taxation,  and  American  in- 
dependence. This  was  his  entrance  upon  a  career 
which  earned  him  the  title  of  "Father  of  Reform." 
He  promoted  the  establishment  of  the  famous  "So- 
ciety for  Constitutional  Information"  and  the 
"Friends  of  Liberty  of  the  Press."  Having  attended 
a  public  meeting  to  celebrate  the  taking  of  the  Bas- 
tile,  his  promotion  in  the  militia  was  withheld,  and 
his  commission  at  length  altogether  cancelled.  How- 
ever, his  position  as  a  country  gentleman  insured  him 
continuing  respect.  In  1813  he  was  arrested  in  the 
course  of  a  political  tour,  but  soon  released.  In  1820 
he  was  tried  for  sedition,  and  fined  100  pounds.  This 
seems  rather  remarkable  since  Cartwright  was  a  mon- 
archist, opposing  the  republican  propaganda  of 
Thomas  Paine,  and  insisting  only  upon  parliament- 
ary reform.  "Cartwright  was  one  of  the  most  gener- 
ous men  of  his  time.  His  writings  are  excessively  dry 
to  the  ordinary  reader,  and  quite  significant  of  the  en- 
thusiast who  could  be  earnest  without  being 
inflamatory."  Upward  of  eighty  tracts  besides  some 

85 


JOHN  CARTRIGHT 

books  were  published  by  him.  He  was  also  in  active 
cooperation  with  Clarkson,  Granville,  Sharp  and  other 
anti-slavery  leaders.  On  June  5,  1824,  Thomas  Jef- 
ferson wrote  a  long  and  friendly  letter  to  Cartwright, 
in  approbation  of  the  very  book  from  which  the  fol- 
lowing pages  are  extracted.  Alibone  quotes  the  Hi. 
Hon.  Charles  James  Fox  as  eulogizing  Cartwright 
in  the  following  words:  "He  was  one  whose  enlight- 
ened mind  and  profound  constitutional  knowledge 
placed  him  in  the  highest  rank  of  public  character, 
and  whose  purity  of  principles  and  consistency  of 
conduct  through  life  commanded  the  most  respectful 
attention  to  his  opinions."  T.  S. 


Ed.  Note  :  —  What  follows  is  extracted  from  Cart- 
right's  once  famous  "  The  English  Constitution  Pro- 
duced and  Illustrated."  Now  it  seems  a  misfortune 
that  the  author  chose  to  present  his  thoughts  in  the 
form  of  a  dialogue.  However,  here  it  is  reproduced 
as  found  in  the  edition  of  1823  between  pages  350 
and  364;  104  and  115;  also  page  122. 


86 


RESISTANCE 
AND  ARMSBEARING 

BY  JOHN  CARTRIGHT 

But  such  is  the  importance  of  the  point,  that,  for 
giving  you  some  practical  knowledge  of  our  constitu- 
tional artillery  of  principles  and  fundamental  laws, 
after  referring  you  to  the  second  article  of  our  Pol- 
ity, and  its  subjoined  vindication  and  illustration,  I 
shall  submit  to  you  a  series  of  observations,  facts,  and 
inferences.  To  go  at  once  into  the  pith  of  the  argu- 
ment, we  will  suppose  it  asked,  "In  what  case  is  it 
just  and  lawful  to  resist  the  exercise  of  power?"  The 
obvious  answer  is:  ffln  all  cases  in  which  power  is 
unjustly  and  unlawfully  exercised/'  For  surely,  as 
Bolingbroke  observes,  there  cannot  be  a  greater  ab- 
surdity, than  to  affirm  that  "the  People  have  a  reme- 
dy in  resistance,  when  their  prince  attempts  to  enslave 
them :  but  that  they  have  none,  when  their  represent- 
atives sell  themselves  and  them."€  How  else  could 
the  machine  of  the  national  polity  be  kept  in  order 
and  made  to  do  its  work  for  the  good  of  the  People, 
which  is  the  end  and  object  of  all  authority?  Re- 
sistance is  therefore  not  only  a  right,  but  a  duty. 

In  an  age  like  the  present,  if  the  nation  be  true  to 
itself,  Truth  is  the  only  weapon  of  resistance  we  need 
to  use ;  for  Truth,  when  by  any  nation  duly  attended 
to,  will  ever  triumph.  We  take  it  to  be  self-evident, 
that,  were  things  in  a  right  train,  that  is,  were  the 
Nation,  the  Legislature,  and  the  First  Magistrate, 
respectively,  in  full  possession  of  their  own  proper 
sovereignty,  an  unjust  and  unlawful  exercise  of  pow- 
er would  be  an  unimaginable  case.  Error,  indeed, 

(•)  Letters  on  the  Study  of  History,  Letter  V,    [p.  49,  of  Ward 
Locke  &  Co-London  Edition.] 

87 


RESISTANCE  AND  ARMSBEARING 

might  occur;  but  its  occurrences  would  produce  its 
correction.  It  is  intention  that  constitutes  criminali- 
ty, in  the  unlawful  exercise  of  power.  In  the  case 
supposed,  a  case  to  which  we  trust  radical  reform  is 
conducting  us,  there  could  not  be  an  unjust  and  un- 
lawful exercise  of  authority.  "When  complaints  are 
freely  heard,"  says  Milton,  "deeply  considered,  and 
speedily  reformed,  then  is  the  utmost  bound  of  lib- 
erty attained,  that  wise  men  look  for."7  Such  a 
"bound"  it  is  the  object  of  a  radical  reform  of  par- 
liament to  establish. 

It  is  when  some  great  deviation  from  the  princi- 
ples of  our  polity  has  taken  place;  it  is  when  some 
high  prerogative  of  the  Nation,  of  the  Legislature, 
or  of  the  First  Magistrate,  has  been  violated, 
abridged,  or  destroyed;  that  resistance  in  its  serious 
forms,  according  to  circumstances,  and  proportioned 
to  the  exigency,  is  necessary. 

Touching  any  abridgement  of  the  power  of  the 
Parliament  de  facto,  we  have  at  present  no  case  to 
put.  That  power  is  at  least  in  full  plumage.  We 
think  it  soars  much  too  high.  But  how  stands  it  with 
the  power  of  the  King?  Is  it  all  in  his  own  posses- 
sion, and  does  it  give  him  constitutional  independ- 
ence? It  is  the  intendment  of  the  Constitution,  that 
the  Crown  shall  have  its  reliance  for  revenue  on  the 
sovereign  Nation ;  a  Nation  proverbial  for  its  gener- 
osity, speaking  through  an  assembly  truly  represent- 
ing its  majesty,  its  greatness,  and  its  virtues;  a  Na- 
tion which,  having  no  object  but  its  own  good  and  its 
own  dignity,  and  secure  as  it  would  then  be  of  a  faith- 
ful application  of  its  resources,  is  ever  ready  to  give 
and  grant  with  the  utmost  liberality ;  and,  to  a  patriot 
King,  with  even  an  improvident  profusion. 

But,  instead  of  this,  in  the  present  state  of  what 
is  called  Representation,  is  it  not  manifest  that,  for 
every  shilling  of  revenue,  the  King  is  dependent,— 
not  on  the  Nation,  but — on  a  seat-selling  faction  of 

C)  Prose  Works,  Amsterdam  Ed.  1698,  p.  423. 

88 


RESISTANCE  AND  ARMSBEARING 

corrupt  traffickers  in  rotten  boroughs?  In  this  de- 
pendence of  the  King  on  the  Boroughmongers,  do 
we  not  in  reality  discover,  that  the  despotic  Preroga- 
tive ascribed  to  Him,  with  its  boundless  bribery,  he 
is  in  fact  compellible  to  exercise  at  the  bidding,  and 
for  the  profit,  of  his  lords  and  masters,  the  Oligarchs, 
to  the  riveting  of  their  detested  yoke  on  the  necks  of 
himself  and  the  People?  Is  this  the  proper  condition 
of  a  King  of  England?  Is  not  this  a  thing  to  be  re- 
sisted? Or  were  it  less  an  object  of  resistance ',  were 
a  prince  on  the  throne  so  misled,  or  so  corrupt,  as  to 
truckle  to  the  vile  usurpers?  Or,  were  he  so  unad- 
vised and  infatuated  as  to  make  the  faction  partners 
in  his  throne,,  partakers  in  his  executive  sovereignty, 
and  sharers  in  his  power?  Such  a  circumstance, 
should  it  ever  occur,  would,  in  our  judgment,  give 
tenfold  force  to  the  necessity  of  resistance. — But 
have  not,  in  fact,  Cabinet  Ministers  been  forced,  by 
the  Oligarchs,  upon  our  Kings  against  their  will  and 
avowed  dislike? 

We  are  not,  however,  constrained  merely  to  reason 
on  resistance  to  any  unjust  and  unlawful  exercise  of 
power,  as  a  necessary  principle  of  free  government; 
for  it  is  conspicuous  as  a  doctrine  of  our  written  code; 
and  there,  when  the  necessity  may  arrive,  we  find  it 
enjoined  on  the  People.  By  Magna  Charta  it  was 
enacted,  that  the  People  should  "have  all  their  an- 
tient  right,  liberties  and  free  customs;" — that  "all 
evil  customs  should  be  utterly  abolished  so  as  never 
to  be  restored"; — that  "all  foreign  troops  should  be 
sent  out  of  the  kingdom;" — that  "full  justice  should 
be  done  to  all  complainants;" — that,  as  "a  security 
for  the  amendment  of  the  kingdom,  and  for  quieting 
all  discord,  five-and-twenty  barons  should  by  the  rest 
be  chosen,  who  should  take  care,  with  all  their  might, 
that  the  peace  and  liberties  should  be  observed." 

That  in  case  of  failure  on  the  part  of  the  King,  by 
his  not  affording  "a  redress  of  the  grievances  laid 
open  to  him  by  Petition,  within  40  days,  the  said  five- 

89 


RESISTANCE  AND  ARMSBEAR1NG 

and-twenty  barons,  together  with  the  community  of 
the  whole  kingdom,  should  distrain  and  distress  him 
[the  King]  all  the  ways  possible;  namely,  by  seizing 
his  castles,  lands,  and  possessions,  and  in  any  other 
manner  they  could,  till  the  grievances  should  be  re- 
dressed, saving  harmless  only  the  person  of  himself, 
his  queen,  and  children ;"-  -"that  any  person  whatever 
might  swear  to  obey  the  orders  of  the  said  barons,  nnd 
that  to  the  utmost  of  his  power  he  would,  jointly  with 
them  distress  the  King,  and  would  not  hinder  any 
person  from  taking  the  said  oath;" — nay,  that  "as 
for  all  those  who  would  not  of  their  own  accord  so 
swear,  he  (the  King)  would  issue  his  order  to  make 
them  take  the  said  oath;" — and  it  was  also  sworn, 
as  well  on  the  King's  part  as  on  the  part  of 
the  Barons,  that  "  all  the  things  aforesaid  should 
faithfully  and  sincerely  be  observed." — Given  under 
the  King's  hand,  in  the  presence  of  the  witnesses,  in 
the  meadow  called  Riming  Mead,  between  W indie - 
gore  and  Staines,  the  15th  day  of  June,  1215." 

From  this  monument  of  baronial  patriotism,  so 
comprehensive  and  yet  so  minute  in  its  provisions,  so 
energetic  and  so  decisive  in  its  conditions,  it  is  evident 
that,  as  far  as  the  science  of  civil  government  and 
the  nature  of  political  liberty  were,  at  that  day  of 
feudalism,  understood  by  the  English  barons,  par- 
ticularly by  the  words,  "/or  the  amendment  of  the 
kingdom"  and  "that  all  evil  customs  should  be  abol- 
ished, so  as  never  to  be  restored;"  they  honestly  in- 
tended radical  reform ;  for  no  one  can  impute  to  them 
having  intended  to  do  their  work  by  halves;  or  call 
them  gradual  Reformers.  Although  the  article  were 
seventy-nine  in  number,  they  were  struck  off  at  one 
heat. 

T3olitical  science  is  now  somewhat  advanced,  when 
it  is  clearly  seen,  that  the  complete  and  lasting  means 
to  the  "amendment  of  the  kingdom  and  abolishing  all 
evil  custom"  lies  in  the  sixteenth  part  of  the  compass 
of  Magna  Charta,  that  is,  in  only  five  articles.  Mag- 

90 


RESISTANCE  AND  ARMSUEARING 

na  Charta  "only  pruned  the  luxuriances  of  the  feu- 
dal system8;"  and  was  scarcely  signed  and  sealed  ere 
followed  by  a  constant  succession  of  new  oppressions ; 
and  even  a  bloody  and  ruthless  war  made  on  the 
People  by  the  perjured  John,  in  our  day  so  exactly 
imitated  by  two  Bourbon  Ferdinands.  The  Consti- 
tution, divinely  simple,  and  resting  on  principles  of 
eternity,  promises,  as  far  as  human  reasons  can  pene- 
trate, tranquillity,  freedom  and  prosperity,  to  the 
end  of  time. 

We  come  now  to  the  celebrated  Bill  of  Eights,  an 
Act  declaring  "the  Rights  and  Liberties  of  the  sub- 
ject, and  settling  the  succession  of  the  Crown."  This 
Act  says,  "the  Crown  shall  be  and  continue  to  their 
said  Majesties  and  the  survivor  of  them."  It  then 
proceeds  to  entail  it  first,  on  the  issue  of  Mary;  then, 
second,  on  the  princess,  afterwards  Queen  Anne; 
third,  on  her  issue:  fourth,  on  the  issue  of  William. 
After  all  this,  it  enacts,  "That  all  and  every  person 
and  persons,  that  is,  are,  or  shall  be  reconciled  to,  or 
shall  hold  communion  with,  the  See  or  Church  of 
Rome,  or  shall  profess  the  Popish  religion,  or  shall 
marry  a  Papist,  shall  be  excluded  and  be  forever 
incapable  to  inherit,  possess,  and  enjoy  the  Crown 
and  Government  of  this  realm;  and  in  all  and  every 
such  case  and  cases,  the  People  of  these  realms  shall 
be,  and  are  hereby  absolved  of  their  allegiance.  In 
support  of  the  settlement,  the  Parliament,  in  the 
name  of  all  the  People,  faithfully  promise,  that  they 
idll  stand  to,  maintain,  and  defend  their  said  Majes- 
ties, and  also  the  limitation  and  succession  of  the 
Crown  herein  specified  and  contained,  to  the  utmost 
of  their  power,  with  their  lives  and  estates,  against  all 
persons  whatsoever  that  shall  attempt  any  thing  to 
the  contrary." 

As  allegiance  is  not  due  to  an  heir,  but  only  to  a 
King,  here  there  is  a  case  in  which  the  People,  by  a 
second  Magna  Charta,  are  bound,  not  merely  to 

(8)    Blackstone's  Commentaries,  vol.   IV,  p.  438. 

91 


RESISTANCE  AND  ARMSBEARING 

stand  upon  a  defensive  resistance  against  a  violation 
of  law ;  but  if  the  King  shall  either  become,  or  marry 
a  Papist,  they  are  to  be  "absolved  of  their  allegiance" 
and  he  is  to  be  driven  from  the  throne  by  force  of 
arms.  A  stronger  exemplification  of  the  constitu- 
tional doctrine  of  resistance  to  any  unjust  or  unlaw- 
ful exercise  of  power  by  the  Crown,  it  is  not  possible 
to  conceive. — Then,  with  Magna  Charta  and  the  Bill 
of  Rights,  I  say  again,  rather  than  Slavery,  give  us 
Civil  War! 

Civil  War  for  principles  and  opinions  will  vary  ac- 
cording to  the  state  of  knowledge.  Between  Error 
and  Error,  in  ages  of  darkness,  it  may  be  durable. 
Between  Error  and  Truth,  in  an  age  of  light,  it  must 
be  short.  In  either  case  the  contest  is  between  Men 
and  Men:  but  a  military  Despotism  is  a  never-ceas- 
ing war  between  an  army  of  martyrs  without  arms, 
and  an  army  of  demons  with  arms.  Rather  than  this, 
Give  us,  I  say  again,  Civil  War!  In  the  last  extrem- 
ity there  cannot  be  resistance  without  civil  war;  but 
we  see  resistance  enjoined  us  as  a  DUTY  by  the  statutes 
most  conspicuous  for  the  assertion  of  our  rights. 

So  accordingly  and  nobly,  in  the  unconstitutional 
American  War  of  the  last  century,  did  the  honest 
Earl  ofAbingdon  maintain  that  "Obedience  is  due 
to  the  Laws  when  founded  on  the  Constitution;  but 
when  they  are  subversive  of  the  Constitution,  then 
disobedience  instead  of  obedience  is  due,  and  Resis- 
tance becomes  the  Law  of  the  Land"*  And  in  a 
debate  on  Lord  Grenville's  Gagging  Bill  of  1795, 
the  same  virtuous  nobleman  declared,  that,  "if  the 
compacts  settled  by  the  Bill  of  Rights  were  broken, 
it  might  happen  that  the  Government  might  be  in  a 
state  of  rebellion  against  the  People."10  If  Lord 
Abingdon  were  now  living,  it  might  puzzle  him  to 
find  a  clause  of  that  Bill  of  Rights  which  is  not 
broken.  But  what  is  worse,  he  assuredly  would  not 

(•)  Thoughts  on  Letters  of  Burke  to  Sheridan,  of  Bristol,  p.  17. 

(to)  History  of  the  Two  Acts,  p.  188. 

92 


RESISTANCE  AND  ARMSBEARING 

find  a  single  Element  of  the  Constitution  whole; 
save  only  the  first;  which,  being  entirely  of  a  spiritual 
nature  and  heavenly  temper,  the  Devil  himself,  with 
all  the  powers  of  Pandemonium  at  his  back,  cannot 
break. 

Even  Blackstone  admits  "the  natural  right  of  re- 
sistance and  self-preservation,  when  the  sanctions  of 
society  and  laws  are  found  insufficient  to  restrain  the 
violence  of  oppression."11 

Such,  my  friend,  is  the  constitutional  doctrine  of 
Resistance;  which,  as  soon  as  the  English  People 
shall  have  recovered  the  English  Constitution,  can 
no  more  have  motive  or  existence.  And  whatever 
may  continue  to  be  the  wanton  excesses  of  lawless 
power,  whatever  may  be  the  craft  and  servility  of 
lawyers,  whatever  may  be  the  multitude  of  barracks, 
whatever  may  be  the  muster-roll  of  a  standing-army, 
or  the  overstrained  power  of  Parliament, — yet  the 
People,  in  this  enlightened  and  active  age,  if  they 
shall  not  sleep  over  their  wrongs,  have  nothing  to 
fear.  Their  resistance  will  find  more  force  in  JUS- 
TICE, than  their  oppressors  in  the  Bayonet ;  more  po- 
tency in  TRUTH,  than  their  enemies  in  POWDER  and 
BALL;  more  effect  from  FREE  DISCUSSION,  than 
tyrants  from  Cavalry  and  Infantry  with  their  whole 
train  of  Artillery. 

To  recur  again  to  the  topic  of  Civil  War,  (which, 
delivering  a  mere  opinion,  I  certainly  prefer  to  a 
state  of  slavery,)  it  must  always  be  asked—  "When- 
ever it  occurs,  who  are  the  criminal  parties?  They 
whose  oppressions  are  its  cause;  or  they  who,  by 
hard  necessity,  are  driven  into  it?  They  who,  having 
stolen  the  powers  of  legislation  and  the  nation's 
sword,  have  for  ages  actually  carried  on  a  war 
against  an  unresisting  People  with  a  cruel  and  unre- 
lenting perseverance;  or  they  who,  at  length,  as  the 
sole  means  left  for  self-preservation,  turn  on  their 

(")  History  of  the  Two  Acts,  p.  144. 

93 


RESISTANCE  AND  ARMSBEARING 

wicked  oppressors?  They  who  use  the  stolen  sword, 
to  rivet  on  their  country's  neck  a  Turkish  tyranny 
with  its  inhuman  massacres;  or  they  who  nobly  rise 
to  shake  off  the  galling  yoke,  and  recover  the  Consti- 
tution of  their  illustrious  ancestors?" 

A.  There  is  in  your  words  that  which  I  feel  in  ev- 
ery nerve !  My  intellect,  my  heart,  my  soul,  are  all  in 
unison  with  yours!  Doubtless,  it  is  the  Oppressor 
who  breaks,  the  resisting  Patriot  who  obeys,  the  Law. 
— But  I  will  not  interrupt  you.  Go  on,  my  friend ! 

C.  In  our  written  code,  there  is  additional  evi- 
dence to  prove  the  right  and  duty  of  resistance  to 
power,  when  unjustly  exercised.  And  of  course, 
more  particularly  when,  according  to  Lord  Abing- 
don, — an  Abdiel  faithful  among  the  unfaithful  I — ua 
Government  is  in  a  state  of  rebellion  against  the 
People." 

From  the  honest  Samuel  Johnson  (Chaplain  to 
that  Lord  Russell  who,  in  such  a  resistance,  fell  a  vic- 
tim,) We  are  reminded  that,  by  an  Act  of  the  42d  of 
Henry  III.,  (omitted  in  the  Statute  Book)  in  ref- 
erence to  resistance,  it  is  said,  "men  in  our  realm  may 
lawfully  rise  up  against  us,  and  annoy  us  with  might 
and  main,  as  if  they  were  under  no  obligation  to  us. 
And  in  case  I  break  my  oath  (which  God  forbid)  the 
inhabitants  of  this  realm  shall  not  be  bound  to  yield 
to  us  any  obedience."1 

"It  was,"  says  he  again,  "always  lawful  for  vas- 
sals to  make  war  upon  their  lords,  if  they  had  just 
cause:  so  our  Kings  did  perpetually  upon  the  Kings 
of  France,  to  whom  they  were  vassals  all  the  while 
they  held  their  territories  in  that  kingdom.  And  by 
the  law  of  England,  an  inferior  vassal  might  fight 
his  lord  in  a  weighty  cause,  even  in  duel."-  "This 
was  the  standing  law  long  before  the  time  of  King 
John's  barons;  for  the  Parliament,  in  the  10th  of 
Richard  II.,  sent  the  King  a  solemn  message,  that 

(")   In  Archives  of  London. 

94 


RESISTANCE  AND  ARMSBEAKING 

by  an  antient  statute,  they  had  power  to  depose  a 
King  that  would  not  behave  himself  as  he  ought,  nor 
be  ruled  by  the  laws  of  the  realm.  And  they  in- 
stance in  the  deposing  of  Edward  II.,  as  a  modern 
thing,  in  respect  of  the  antiquity  of  that  statute." 

After  a  confirmation  of  his  doctrine  by  a  passage 
from  E radon,  he  adds,  "I  might  multiply  quota- 
tions out  of  Fleta  and  others,  to  the  same  purpose; 
but  what  I  have  set  down  is  sufficient ;  and  therefore 
I  shall  rather  take  this  occasion  to  admire  the  wis- 
dom of  the  English  Constitution,  which  seems  to  be 
built  for  perpetuity." — "For  how  can  a  Government 
fail  which  has  such  principles  within  it,  and  a  several 
respective  remedy  lodged  in  the  very  bowels  of  it?"13 

When,  on  the  testimony  of  Sir  Edward  Coke,  we 
also  find,  that  in  his  time  ff  Magna  Chart  a  had  been 
confirmed,  established  and  commanded  to  be  put  in 
execution,  by  TWO-AND-THIRTY  several  Acts  of  Par- 
liament," have  we  not  here  the  doctrine  of  Resistance 
two-and-thirty  times  reiterated,  by  solemn  declara- 
tions of  the  Legislature,  that,  to  resist  the  exercise  of 
unlawful  power  by  the  King,  or  the  Government,  is 
our  duty? 

But  here,  please  to  observe,  that  in  the  Index  to 
the  Statutes  by  Ruff  head  and  Runnington,  under  the 
word — King, — we  find  ft Resistance  of  evil  admin- 
istration, by  War,  justified/'  when,  turning  to  the 
Statute  referred  to,  we  find  it  mere  trash ;  while  the 
Runing  Mead  Magna  Charta,  that  spoke  so  much 
to  the  purpose,  and  had  had  so  many  parliamentary 
confirmations,  is  denied  a  place  in  the  book,  but  a 
later  charter  of  Henry  III.,  which  says  not  a  syllable 
about  Resistance  insidiously  usurps  its  place  at  the 
head  of  the  Statutes!!! — Have  we  not  here,  one  of 
those  innumerable  instances,  for  proving  a  wide- 
spread conspiracy  against  freedom,  which  brands  the 
law  and  literature  of  the  age  with  indelible  infamy! 

(")   P.  273,  275. 

95 


RESISTANCE  AND  ARMSBEARING 

When  Henry  III.,  in  1225,  desired  a  fifteenth, 
for  recovering  his  dominions  in  France,  "though 
many  of  the  Earls  and  Barons  had  thereby  lost  their 
inheritances  as  well  as  the  King,  yet  the  whole  as- 
sembly agreed  in  this  answer: — That  they  would 
freely  grant  the  King  what  he  desired,  but  upon  con- 
dition, if  he  would  grant  them  their  long  desired  lib- 
erties. Upon  this,  Henry  has  Charters  presently 
written  and  sealed,  and  sent  to  all  the  counties,  and 
an  oath  in  writing,  for  all  men  to  swear  to  them. 
Mathew  Paris  forbore  to  recite  the  tenor  of  these 
Charters,  because  he  had  done  it  before  in  King 
John's  reign,  for  the  Charters  of  both  Kings  were 
alike.  In  nullo  inveniuntur  dissimiles"  So  says 
Johnson,  p.  349. 

Rapin's  account  is  as  follows.  "The  Parliament 
told  him,  they  would  readily  grant  him  the  aid  he 
required,  provided  the  Charters  of  King  John,  which 
had  all  along  been  neglected,  were  punctually  ob- 
served for  the  future.  The  King's  circumstances 
not  suffering  him  to  deny  their  request,  he  granted  it 
in  a  handsome  manner,  and  even  sent  into  every  coun- 
ty Commissioners  to  see  the  Charters  executed."14 
I  wish  now  to  learn  the  sentiments  of  our  companion, 
who  is  not  only  learned  in  the  law,  but,  what  is  far 
better,  understands  and  reverences  the  Constitution. 

B.  I  heartily  subscribe  to  all  that  has  been  said; 
and,  although  old  enough  to  be  our  young  friend's 
grandfather,  my  frame  glows  with  all  that  he  feels 
on  a  point  so  interesting  to  Englishmen.  Having, 
however,  disposed  of  what  relates  to  constitutional 
Resistance,  we  may  now  return  to  the  general  sub- 
ject, and  congratulate  our  country  on  having  for  our 
guidance  a  written  Constitution,  as  intelligible  as  the 
Ten  Commandments  and  in  half  their  compass; — a 
Constitution  whereof  the  soul  is  Representation, 
which,  in  those  feverish  times  spoken  of  by  the  late 
Lord  Liverpool,  was  very  imperfectly  compre- 

(")  Mathew  Paris— P.  324.    Heningford,  p.  568.    Ann  Burton,  p.  971. 

96 


RESISTANCE  AND  ARMSBEARING 

bended,  but  is  now  matter  of  certain,  sober  knowl- 
edge, of  complete  conviction,  and  of  a  most  powerful 
popular  interest,  no  longer  subject  to  Whig  or  Tory 
delusion. 

By  the  great  Bacon,  it  was  sagaciously  remarked 
that  KNOWLEDGE  is  POWER.  Consequently,  IGNOR- 
ANCE is  IMBECILITY.  Then,  with  the  power  of  knowl- 
edge on  the  side  of  the  Reformers,  while  equal  and 
complete  REPRESENTATION  is  a  universal  right 
and  a  universal  good,  which  no  Belial  sophis- 
try can  explain  away,  nor  all  the  music  of 
meretricious  eloquence  can  charm  from  the  under- 
standings and  hearts  of  men,  must  not,  on  occasion 
of  a  mental  agitation,  the  enlightened  on  this  subject 
carry  the  day  with  a  triumph  which  must  deprive  the 
champions  of  ignorance,  despotism  and  pillage  of 
any  possible  means  of  waging  a  successful  Civil 
War?  That  bugbear  may,  therefore,  be  treated  with 
the  same  contempt  as  the  bugbear  of  Revolution. 

A.  It  certainly  surpasses  the  wisdom  of  a  Socrates 
or  of  a  Solomon  to  eradicate  from  the  human  intel- 
lect what  it  once  knows.  Man,  so  long  as  reason 
holds  its  seat,  cannot  be  made  to  unlearn  truths  once 
implanted  in  him.  They  are  part  of  his  very  nature. 
No  device  can  separate  them.  But  when  they  are 
essential  to  his  self-preservation  from  slavery  and 
ruin,  he  is  from  that  moment  a  potent  element  of 
national  resistance  to  despotism.  Consequently  such 
knowledge,  when  universal,  is  volcanic  matter  under 
the  whole  of  an  unconstitutional,  tyrannical  and  cor- 
rupt Government.  If  it  explode,  the  tyranny  is 
annihilated. 

When,  however,  we  contemplate  those  three  Ele- 
ments of  our  genuine  Constitution,  which  are  bot- 
tomed on  "self-preservation"  it  is  abundantly  mani- 
fest that  no  political  conflict  between  a  Nation  on  one 
hand,  and  its  Legislators  or  Ministers  on  the  other, 
can  by  possibility  occur,  except  when,  according  to 

97 


RESISTANCE  AND  ARMSBEARING 

Lord  Abingdon,  "the  Government  is  in  rebellion 
against  the  People/' 

1.  When  a  strong  man  armed  keepeth  his  house, 
his  goods  are  in  peace.15 

2.  In  all  ages  and  nations,  free  arms-bearing  has 
been  the  distinction  of  a  citizen  from  a  slave. 

3.  "A  Militia  is  the  chief  part  of  the  Constitution 
of  any  free  Government."16 

4.  It  is  as  impossible  to  conceive  the  freedom  of  a 
disarmed  nation,  as  the  health  of  a  full-grown  man 
with  the  feebleness  of  a  cradled  infant. 

5.  The  system  of  this  second  element  of  the  Con- 
stitution is  one  of  which  equal  liberty  is  the  inspiring 
soul,  and  general  liberty  the  happy  result. 

6.  The  English  Constitution  is  a  civil  and  military 
polity. 

7.  The  proper  English  Militia,  or  County  Power, 
consists  of  the  whole  physical  strength  of  the  com- 
munity, from  the  duke  to  the  peasant,  who  are  re- 
quired by  the  Constitution  to  be  suitably  armed  and 
organized.17 

8.  The  County  Power,,  by  its  ubiquity  and  resist- 
less force,  whenever  it  shall  be  restored  to  full  vigour 
and  energy,  will  equally  prevent  the  possibility  of 
disgraceful  riots,  the  possibility  of  serious  rebellion, 
or  the  possibility  of  successful  invasion.18 

9.  On  the  true  principles  of  order, — the  very  bond 
of  all  society, — and  by  a  beautiful,  refined,  yet  simple 
mechanism,  it  organizes  a  community  of  free  citizens 
into  an  invincible  army;  it  communicates  the  sensi- 
bilities of  the  individual  to  the  aggregate  of  society, 
and  causes  those  energies,  for  resenting  menace  and 
repelling  assault,  which  characterize  a  brave  man,  to 
adorn  and  dignify  a  great  nation. 

(")  New  Testament.     (See  Luke,  11-21.) 

(")      Fletcher    Andrew    of   Saltoun's    Political    Works,    by    Dr.    R. 
Watson,  p.  142,  (1797).     Edition  of  1722,  p.  47. 

(")     Sir  William  Jones'  An  Inquiry  into  the  Legal  Mode  of  Sup- 
pressing Riots.     Edit,  of  1819,  p.  12. 

(")  See  this  demonstrated  in,  An  Appeal  Civil  and  Military  on  the 
English  constitution,  and  in  England's  Aegfs. 

98 


RESISTANCE  AND  ARMSBEARING 

10.  Sir  William  Jones,  in  that  gem  of  law  litera- 
ture, "The  Legal  Means  of  Suppressing  Riots,"  has 
completely  established,  as  written  law,  the  existence 
of  this  universal  duty  of  arms-bearing;  and  the  fre- 
quent decisions,  awarding  damages  to  persons  who 
suffer  in  their  property  by  riots,  confirms  the  doc- 
trine. 

11.  When  the  court  for  "three  centuries,"  as  re- 
marked by  the  late  Earl  of  Liverpool,  hath  syste- 
matically undermined  the  civil  energies  of  our  free 
government,  to  furnish  pretenses  for  systematically 
employing  a  Standing  Army  in  keeping  the  peace; 
that  a  persuasion  of  the  necessity  of  so  doing  may  be 
established;  and  when  riotous  mischief  hath  ensued 
in  consequence  of  the  inhabitants  being  disarmed,  and 
thereby    disabled    from   defending  themselves   and 
neighbours,  they  receive  in  our  courts  of  justice — of 
perverted  law,  I  mean, — a  rebuking  lecture  on  neg- 
lected duties;  they  are  told  they  are  answerable  "by 
the  statute  of  Winchester,  for  felonies  and  robberies 
done  among  them";  which  they  ought  to  prevent  or 
suppress  by  force  of  arms ;  and  they  are  actually  cast 
in  damages  to  the  full  amount  of  the  injuries  sus- 
tained by  those  who  have  had  their  houses  injured, 
pillaged  or  burned;  which  damages  ought  rather  to 
be  levied  on  the  criminal  statesmen  of  the  day  who 
have  been  parties  to  the  systematic  iniquity. 

12.  Thus,  strange  to  tell,  we  have,  and  we  have 
not,  the  ancient  County  Power  for  our  protection! 
Its  utility  is  insidiously  taken  from  us,  but  we  are 
made  to  smart  under  its  penalties !     Its  duties  we  are 
not  permitted  to  fulfill,  but  for  the  omission  of  them 
we  receive  punishment! 

13.  The  martial  arms  and  exercises  peremptorily 
enjoined  by  the  Constitution  are  forbidden  by  bor- 
oughmonger  laws ;  and  yet,  for  not  successfully  re- 
sisting insurrectionary  violence,  we  are  treated  as 
criminals ! 

14.  In   a  country  whose   "law   and  constitution 
know  no  such  state  (as  that  of  a  perpetual  standing 

99 


RESISTANCE  AND  ARMSBEARING 

soldier  9"ld)  it  is  difficult  to  imagine  a  more  malignant 
treason  than  that  of  systematically  undermining  the 
Right  and  Duty  of  universal  armsbearing,  as  well  as 
of  systematically  on  all  occasions  foisting  in  the  sol- 
diery of  a  Standing  Army  to  usurp  the  civil  office  of 
keeping  the  peace;  which,  of  all  possible  violations, 
is  in  its  nature  the  most  atrocious,  most  dangerous 
and  most  destructive. 

15.  Whether  a  State  be  in  reality  under  a  civil 
and  free  government,  or  under  a  military  and  conse- 
quently a  despotic  government,  must  necessarily  de- 
pend on  the  means  whereby  the  Law  can,  in  all  weight 
sible  cases  be  carried  into  complete  effect.    If  such  be 
the  weight,  strength  and  energy  of  the  civil  authori- 
ties, and  their  means,,  that,  in  all  possible  cases,  the 
Law  can  be  carried  into  full  effect  with  absolute  cer- 
tainty, by  the  civil  power,  unarmed  or  armed  as  occa- 
sion may  require ;  it  is  then,  and  then  only,  a  civil  state 
and  free  government.    Whereas,  if  the  means  of  the 
civil  authorities  have  been  so  undermined,  and  par- 
alysed or  destroyed,  that  the  Law  cannot  in  all  pos- 
sible cases  be  thereby  carried  into  complete  effect ;  but 
a  military  force  has  to  that  end  been  artfully  made 
necessary;   then    the    government    (whatever    free 
forms,  and  usages,  and  empty  names,  may  be  cun- 
ningly allowed  to  remain)    hath  been  treasonably 
revolutionized  into  a  real  despotism.20 

16.  "Those  who  command  the  arms  of  a  country 
are  masters  of  the  state  and  can  make  what  revolu- 
tions they  please."21 

17.  "Where  Government  only  is  armed,  there  Des- 
potism is  established."22 

18.  The  English  County  Power,  "restored"  (ac- 
cording to  the  anxious  wish  of  Sir  William  Jones) 

(")  Blackstone's  Commentaries,  vol.  I,  p.  408,  12th  Ed.  by  Christian, 
1795. 

(*•)  Appeal  Civil  and  Military  on  English  Constitution,  p.  173,  by 
John  Cartwright,  London,  1799. 

(*)  Aristotle's,  Polities  and  Economics,  book  VII,  chap.  IX,  p.  249. 

(")  Arthur  Young's  Travels  in  France,  during  the  years  1787-9,  p. 
550. 

100 


RESISTANCE  AND  ARMSBEARING 

to  full  vigour  and  energy,"  must,  by  its  ubiquity  and 
resistless  force,  have  the  effect  of  preventing  tumult 
which  a  Standing  Army  can  only  quell,  and  that  per- 
haps when  serious  mischief  has  been  done,  as  in  Lon- 
don in  1780,  and  in  Birmingham  in  1794;  while  sol- 
diers are  quartered  at  York,  rioters  raze  to  the 
ground  houses  at  Sheffield;  while  soldiers  are  sta- 
tioned at  Nottingham,  rioters  set  Birmingham  in 
flames.  A  Standing  Army  cannot,  like  a  County 
Power,  be  everywhere.23 

19.  The  late  Lord  Castlereagh,  although  as  a  min- 
ister and  member  of  Parliament  deeply  criminal,  in 
defrauding  the  Nation  of  this  inestimable  element  of 
the  Constitution,  and  in  stabbing  it  to  the  vitals  by 
upholding  an  immense  Standing  Army,  had  the  ef- 
frontery to  prosecute  on  the  very  law  of  Posse  Comi- 
tatus,  when  a  mob  broke  his  windows  for  his  conduct 
towards  the  Queen ;  and  an  ignorant  Jury  according 
to  the  summing  up  of  the  Justice  on  the  Bench 
awarded  him  damages  to  the  last  pane  of  broken 
glass ! 

20.  Self-preservation  of  the  individual  and  of  the. 
community  by  free  arms,  differs  essentially  from 
self-preservation  by  legislation.     In  an  extensive  ter- 
ritory, Legislation  necessarily  must,  and  with  safety 
may,  be  executed  by  Deputies,  whose  duties  are  per- 
formed at  a  central  point  of  the  territory;  and  who 
cannot  enslave   an   armed   people:   whereas   arms- 
bearing,  to  be  a  defence  either  of  the  community  or 
the  individual,  must  be  personal;  and  is  equally  re- 
quired at  every  point  and  part  of  the  territory.     Be- 
sides, the  defence  of  a  disarmed  People  by  a  Stand- 
ing Army,  is  in  its  very  nature  complete  Enslave- 
ment. 

21.  Alfred,  for  correcting  the  excess  of  disorder 
caused  by  invasions  and  perpetual  war,  improved  the 
organization  of  the  County  Power  to  such  a  degree 
of  perfection,  as  ultimately  crowned  him  with  victory 

(*)  Appeal  Civil  and  Military  on  England  Constitution,  p.  149 

101 


RESISTANCE  AND  ARMSB EARING 

over  all  the  enemies  of  his  country;  which  improve- 
ment likewise  proved  the  means  of  an  order,  tran- 
quillity and  security  throughout  the  kingdom,  which 
for  excellence  hath  no  parallel  in  history. 

22.  Edward  I.  experiencing,  from  a  relaxation  of 
the  system  and  other  causes,   "robberies,  murders, 
burnings,  theft,"  and  a  general  confusion,  he,  by  re- 
storing  discipline   in   the   County   Power,   so   that 
"every    man    should    be    assessed    and    sworn    to 
armour";  and  by  re-enacting,  that  the  inhabitants  of 
each  district  "should  be  answerable  for  the  felonies 
and  robberies   done  among  them,"   again   restored 
tranquillity.24 

23.  By  the  33d  Henry  VIII.  c.  9,  it  is  enacted, 
that  if  a  labouring  man  be  without  his  proper  Arms, 
the  master  shall  provide  them  and  abate  the  price  out 
of  the  servant's  wages;  and  that  every  man  child  of 
seven  years  old  shall  be  trained  to  arms,  on  a  pain  of 
grievous  fine  for  neglect. 

24.  The  late  Earl  of  Liverpool  in  doing  justice 
to  "our  Saxon  ancestors,  for  wisely  constituting  civil 
societies/'  yet,  in  reference  to  that  part  of  their  pol- 
ity, remarks  that  "their  military  establishments  were, 
however,  the  distinguishing  part  of  their  govern- 
ment; by  these,"  says  he,  "they  were  all  bound  to  the 
defence  of  their  country:  and  the  nature,  indeed,  of 
society  seems  to  require,  that  they  who  enter  into  it 
for  the  preservation  of  their  property,  should  equally 
join  in  repelling  any  attempt  that  may  be  made  upon 
it.      This    obligation,   therefore,    was   the   common 
fealty  and  allegiance  which  every  native  owes,  and 
which,  if  neglected,  according  to  the  old  Saxon  Laws, 
rendered  the  party  guilty  of  High  Treason/'     But, 
says  his  Lordship  in  another  page  of  the  same  book, 
"Arbitrary  princes  have  for  these  three  last  centuries 

(M)  Stat.   [ute  of]   Winchester;  also  an]    Appfeal  to  the  Nat(ionJ 
1812,  p.  8. 

(*)  Discourse  on  National  and  Constitutional  Force,  (1757)  p.  15; 
Appeal  Civil  and  Military  on  English  Constitution,  p.  107. 

102 


RESISTANCE  AND  ARMSBEARttiG 

neglected  their  militias,  and  for  their  oven  views  ren- 
dered them  purposely  useless  and  undisciplined."25 

25.  Keeping    in    mind   that   the    armed    County 
Power  is  a  civil  institution,  it  is  highly  important  to 
remark  that,  whether  a  State  be  in  reality  under  a 
civil,  and  therefore  a  free  government,  or  under  a 
military,  and  consequently  a  despotic  government, 
must  depend  on  the  Means  whereby  the  Law  can,  in 
all  possible  cases,  be  carried  into  complete  effect.    If 
such  be  the  power,  the  weight  and  strength  of  the 
civil  authorities,  that  in  all  possible  cases,  the  law  can 
be  completely  enforced  by  the  civil  power,  unarmed 
or  armed,  it  is  then  a  civil  state  and  government. 
But  if,  on  the  contrary,  the  proper  power  of  the  civil 
authorities    have,    by    the    treacherous    abusers    of 
authority,  been  purposely  and  treasonably  under- 
mined and  destroyed,  so  that  the  Law  cannot  in  all 
possible  cases  be  thereby  carried  into  complete  effect ; 
but  that  it  have  become  in  any  cases  necessary  to  use 
the  military  force  of  a  Standing  Army,  or  any  mili- 
tary  force  other  than   the  constitutionally  armed 
County  Power,  then  it  is  demonstrated,  that  the 
government    (whatever  may  be  its  remaining  free 
forms  or  appearances]  hath  in  reality  been  craftily 
and  treasonably  revolutionized  into  a  Despotism. 

26.  "Obedience  is  due  to  the  Laws,  when  founded 
on  the  Constitution ;  but  when  they  are  subversive  of 
the  Constitution,  then  disobedience  instead  of  obedi- 
ence is  due  and  resistance  becomes  the  Law  of  the 
Land."26 

27.  "When  Legislators,  who  were  set  up  for  the 
service  and  protection  of  the  people,  their  liberties 
and  properties,  shall  attempt  to  enslave  the  Nation, 
or  by  force  or  fraud,  or  unconstitutional  legislation, 
to  take  away  those  liberties  and  properties,   such 

(w)  Lord  Abingdon's  Thoughts  on  the  letter  of  Edmund  Burke  to 
the  Sheriffs  of  Bristol,  p.  17,  by  John  Cartwright,  Tx>nd.  1778. 

103 


RESISTANCE  AND  ARMSBEARING 

Legislators,  in  that  case,  are  properly,  and  with  the 
greatest  aggravation,  REBELS/'27 

28.  Volunteer    Corps    raised,    embodied,    armed, 
clothed,  officered  and  disciplined  under  any  authority 
or  influence,  or  regulated  by  any  rules,  other  than  the 
true  principles  and  regulation  of  the  County  Power, 
are  unconstitutional,  unwarrantable  and  dangerous; 
as  liable  to  be  rendered  subservient  to  the  interests  of 
the  court  instead  of  the  country. 

29.  Yeomanry  Corps  composed  of  the  dependent 
tenantry,  tradesmen  or  partisans  of  men  in  power, 
which  has,  deservedly,  obtained  for  them  the  appella- 
tion of  the  Body  Guard  of  the  Boroughmongers,  are 
peculiarly  to  be  reprobated;  as  the  never-to-be-for- 
gotten Manchester  Massacre  hath  deeply  engraven 
on  every  patriot  heart. 

In  Support  of  the  second  element  of  the  Constitu- 
tion, enough  has  now  been  advanced. 

A.  Considering  existing  circumstances,  in  which 
the  Army  List  is  a  large  volume,  and  that,  although 
every  one  can  talk  of  the  Sheriff  and  his  County 
Power,  no  one  ever  saw  that  power,  or  can  see  even 
its  picture,  except  in  Sir  William  Jones's  Legal 
Means  of  Suppressing  Riots''  or  in  "England's 
JEgis"  or  your  "Bill  of  Free  and  Sure  Defence"; 
considering,  I  say,  these  circumstances,  I  shall,  in  the 
course  of  our  conversations,  have  various  questions  to 
ask  relative  to  this  Element  of  our  Polity,  in  which  is 
found  its  physical  strength. 

C.  I  shall  at  all  times  l?e  ready  to  discuss  with  you 
whatever  belongs  to  it.  For  the  present  it  may  be 
best  to  proceed  in  our  course:  but  NEVERTHELESS  I 
must  remark,  that  the  foregoing  element  fully  an- 
swers Mr.  Canning,  when,  with  a  Standing  Army  at 
his  back,  and  the  Manchester  Body  Guard  of  the 
Borough-mongers  at  his  beck,  he,  more  like  a  low- 
minded  protected  bully,  than  an  Englishman  of  a 

(")  John  Locke;  Two  Treatises  of  Government,  book  8,  sect.  219, 
p.  343. 

104 


RESISTANCE  AND  ARMSBEAR1NG 

lofty  and  generous  spirit, — puts  this  taunting  ques- 
tion to  the  patriot  Reformers:  "Do  you  mean  to  pre- 
vail by  reason,  or  by  compulsion?  If,"  says  he,  "by 
reason,  then  reason  is  as  GOOD  out  of  doors  as  in" 

Note  well,  my  friends,  the  complicated  Jesuitical 
insult! — "Reason  is  as  good  out  of  doors  as  in,"  says 
Mr.  Canning.  Were  this,  in  an  honest  sense,  true, 
England  had  been  fairly  represented,  ere  a  thousand 
millions  of  her  money  had  been  profligately  squan- 
dered for  quashing  Reform  at  home,  and  crushing 
Liberty  in  France!  Were  this  flippant  assertion 
true,  such  a  revolution  in  England's  landed  property, 
and  such  a  ruin  of  her  farmers  as  no  country  ever 
before  saw,  would  not  now  be  near  its  final  accom- 
plishment, as  we  see  before  our  eyes!  But  was  not, 
on  the  contrary,  this  "good" — this  unanswerable 
"reason  out  of  doors,"  always  frustrated  by  the  gag- 
ging bills,  the  libel  bills,  the  suspending  bills,  and  the 
indemnity  bills  of  Mr.  Canning  and  his  indoor  asso- 
ciates? Did  they  "prevail  by  reason  or  by  compul- 
sion?" How  monstrous,  then,  the  assertion!  How 
unmanly  the  sneer,  from  one  who,  for  thirty  years 
past,  has  never  heard  the  voice  of  "reason  out  of 
doors,"  when  it  spoke  of  Rights  and  Liberties,  with- 
out stopping  his  ears,  and  skulking  behind  a  merce- 
nary army  to  defend  him  against  it ! 

If  "reason"  Mr.  Canning,  be  "as  good  out  of  doors 
as  in,"  then  why,  good  Sir,  shall  not  "compulsion" 
be  so  likewise?  It  was  "compulsion  out  of  doors" 
that  persuaded  the  perjured  John  to  sign  Magna 
Charta.  It  was  "Compulsion  out  of  doors"  that  de- 
throned the  second  Edward  and  the  second  Richard, 
for  deeds  of  folly  and  mischief.  It  was  "compulsion 
out  of  doors"  that  put  an  end  to  tyrannical  exactions 
of  prerogative  by  Charles  the  First.  It  was  "com- 
pulsion  out  of  doors"  that  chased  from  the  throne, 
and  freed  England  from  the  tyranny  of  his  bigoted 
son  James. 

What  did  not  "compulsion  out  of  doors"  do  for  our 
kindred  of  Anglo- America?  What  is  it  not  now 

105 


RESISTANCE  AND  ARMSBEARIKG 

doing  for  all  South  America,  Mexico,  and  heroic 
Greece? — Hath  it  not  gloriously  triumphed  in  Spain 
and  Portugal? — Then,  I  pray  you,  Mr.  Canning,  to 
give  us  a  "reason,3'  why, — since  our  Constitution  so 
amply  provides  the  means  of  "compulsion  out  of 
doors"  and  therefore  commands  it  when  necessary — 
why,  I  pray  you,  should  "reason  out  of  doors,"  when 
addressed  to  usurping  Oligarchs,  not  prove  so  very 
"good"  in  their  estimation  as  you  say — why,  I  pray 
you — seeing  that  our  same  CONSTITUTION  had  re- 
quired every  man  to  be  armed,  and  the  aggregate  to 
be  organized  in  aCounty  Power, as  an  infallible  shield 
against  oppression,  and  as  means  of  Resistance  by 
physical  force  to  Tyranny  by  physical  force, — shall 
we  not  have  back  that  shield ;  that  so,  when  necessary, 
we  may  apply  a  little  of  that  same  wholesome  consti- 
tutional "compulsion,"  before  the  Boroughmongers 
shall  have  pillaged  the  Nation  of  its  last  shilling,  and 
riveted  around  its  neck  a  worse  than  Algerine  yoke? 
As  a  preliminary  to  what  is  to  be  offered  in  support 
of  the  Third  Element  of  the  Constitution,  it  is  neces- 
sary that  we  wholly  divest  ourselves  of  all  ideas  gen- 
erated or  contracted  by  the  presence  of  an  unconstitu- 
tional Legislature  de  facto,  imposed  on  us  by  the 
legislative  revolution,  and  the  other  usurpations  ef- 
fected by  the  Norm.an  tyrant,  who  contrived  not  only 
to  supersede  the  Wittenagemote  of  our  Anglo-Saxon 
ancestors,  but  to  lay  a  broad  basis  for  succeeding  ag- 
gravations of  that  great  mischief;  for  it  is  the  Wit- 
tenagemote that  we  must  contemplate  as  our  only 
proper  Legislature  de  jure;  without  a  recovery  of 
which,  it  is  manifest  we  cannot  recover  "that  ancient 
Constitution,  whereof  our  Saxon  forefathers  had 
been  unjustly  deprived,  partly  by  the  policy,  and 
partly  by  the  force,  of  the  Norman"29 

(")  Blackstone's  Commentaries,  Vol.  4,  p.  420,  12th  Ed.,  by  Christ- 
ian, 1795. 


106 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


" 


1967  5  8 

IN  0  9  2001 


OCT27'67-4ffM 


LOAN 


DEC  4   '6 


General  Library 
<   r>rrp>  University  of  California 

W  Berkeley 


